The following dissertation focuses on oil exploitation and human rights in local communities of Kenya. It also adopts an approach that effectively explores the laws and regulations on oil exploitation. In Kenya, decentralization of power or the devolution has proposed a significant mechanism that addresses the consequences of oil exploitation and human rights protection. On the other hand, the presence of the Multinational companies producing oil has been termed as the major causes of human rights violations as a result of oil exploitation. Such companies violate different human rights while gaining an advantage from the oil extraction.
Oil extraction in developing countries can become a curse rather than a blessing. Therefore, this research focuses on different perspectives that have resulted to violation of human rights as result of oil exploitation. The overall research is divided into two components that include, the direct human rights violation by oil companies and indirect human rights violation as result of ineffectiveness of the laws and regulations encompassing oil exploitations and protection of human rights.
This study is developed to understand the mechanisms in which oil exploitation has enhanced to violation of human rights in different communities in Kenya. The research is not only concerned at examining the oil exploitation mechanisms but puts into accounts the aspects that enhance human rights violation resulting from oil extraction. Human rights have been violated in various ways for instance, oil spills that cause environmental degradation leading to poor living conditions, displacement of people, and poverty. Additionally, the government fails to include effective policies that address the notion of human rights protection by the oil production companies. In addition to this, human rights venerable to oil exploitation is discussed and further the legal framework that includes, policies or Acts developed locally and internationally in protecting the human rights will also be included.
There is a growing consensus in the literature field that the subject of oil as a resource has enhanced a significant paradox to the economy of developing countries to involve in its production. The increasing concerns are as result of oil exploitation and persistent nature of human rights violation experienced in many of the African countries. Violation of human rights as result of oil exploitation has enhanced to different aspects such as economic inequities and poverty as result of environmental impacts of oil exploitation. This means that oil exploration results to environmental scarcity hence violating human rights since such aspects such as water and land become scarce in supporting economic activities.
Exploitation of resources enhance to economic developments and growth for instance infrastructural developments and poverty reduction in a country. Despite of the positive effects enhanced by oil exploitation towards the economic growth in developing countries, there is reluctance on the negative impacts of oil exploitation on human rights. The government and oil producing companies have neglected the overall theme by failing to enact effective rules and regulation on the overall initiative. Although oil extraction leads to economic growth, it is significant to include different alternative consider the protection of human rights for instance implementation of policies governing human rights protection from oil exploitation.
Oil exploration enhances high revenues, provides job opportunities, enhances infrastructure hence boosting the economy of the country. Despite of all these significant aspects enhanced by resource exploitation, it is significant to understand the negative outputs of the resource exploitation for instance human rights violation and hence focus on the alternatives of reducing such insignificances.
The notion of oil exploitation and human rights violation develops three parties in the overall contests and include the host state or the government, multinational oil producing companies and the local communities. The Government and the Multinational oil companies are responsible on the revenue costs maximization of oil resources hence, leaving the local communities rights violated. In many cases, such as the LAKE Turkana and the Rift valley base region in Kenya that have been triggered with richness in oil production, human rights violation occur as result of exposing the communities to poverty, displacements and environmental degradation .
On the other hand, recent literature illustrate that oil resources in many of the African countries are faced with weak governance hence negatively impacts the sustainability, growth and stability of the countries hence human rights continuously increase being violated. Therefore, the overall research will focus on human rights violation as result of oil exploitation in Kenya
Problem statement and research
The discovery of oil resources in Kenya was considered as a blessing as a result of the huge revenues that would be generated and hence lead to high economic performance. However, in recent years, the overall exploitation of the resource is now considered as a curse especially in violating the human rights. While Kenyan government and oil companies gain advantage from the oil extraction, the people from the oil communities have not benefited from the greater revenues from oil extractions. This is termed as a human right violation since such people become displaces, the land is degraded and yet the revenues from the oil production increase remarkably and only the government and oil companies benefit. Although, many politicians have benefitted and gained a huge advantage of the oil extraction the minority group in the production centers have had their rights violated and still remain in an impoverished lifestyle.
Kenya, as one of the established oil rich countries, is expected to become one of the world suppliers of oil in the coming decades, but the notion of oil extraction is becoming a blessing just for few individuals and at the same time, a curse to the minority ethnic groups. In the oil areas, oil resources are serving as central to human rights violation in different dynamics. Therefore, this research work examines on oil exploitation leading to human rights violation as a result, of corruption, lack of consistency in oil exploitation policy and a weak institution that contribute to human rights violations by many of the multinational oil company.
This research will strive to answer the following research questions
To what extent have oil extractions contributed to human rights violation in oil communities in Kenya? Addressing this question the following sub questions will be examined
The adequacy of the legal framework in Kenya to the sustainable of oil exploitation regulation
How accessible and effective are the extant regulations and laws and how can improvement be done
Why is the environmental situation on oil exploitation deplorable?
How can the existing institutions strengthened
How can the Multinational Oil companies operating in different oil regions in Kenya meet their responsibilities in accordance to the international principles and standards?
Purpose of the study
The objectives of the study aim at contributing significant knowledge on oil resource exploitations and the consequences to human rights violation. Acknowledging the relationship existence between oil exploitation and human rights violation involves the application of different concepts; involvement of the multinational oil companies to human rights violation, inconsistency and weak legal framework and failures of addressing the human rights as result of oil exploitation.
The discovery of oil is considered as a significant opportunity for enhancing economic development to the country. However, the overall assumptions is failing and turning out to be a disadvantage in enhancing the human rights. Environmental degradation caused by oil spills or oil pollution have caused the high levels of poverty in certain areas of oil extraction. The overall research work highlights different concepts that enhance to oil exploitation and violation of human rights, in this way; multinational oil company producers, legal framework ineffectiveness and the government play a critical role in enhancing human rights violations. The study’s objective is to provide a clear understanding of oil exploitation and how it has resulted to human rights exploitation.
Research study justification
The research questions proposed in this study provide the overall justification of understanding the oil exploitation and human rights violation provided that, violations of human rights have become a common theme in different parts of the African countries. Providing a legal policy or framework to address notion of human rights that is becoming a global concern as a result of oil exploitation is significant. This signifies that Kenya needs to formulate a legal framework that protects the human rights as result of oil exploitation. The study will provide empirical evidence on human rights violations as result of oil exploitation among the Kenyan oil communities and how the aspects are enhanced as result of weak legal framework. This research will also provide evidence that is significant for Kenya as it continues to strategize in solving the problem of human rights, poverty, conflicts, criminality and illegal bunkering of oil
Structure of the study
The following dissertation examines human rights and oil exploitation in oil communities in Kenya. The first chapter defines the overall study and includes the introduction, background of the study research overview and provides a significant explanation of the variables included in the research. The chapter includes significant research question and a problem statement, research objectives, research scope, research justification and finally the research structure.
Chapter two discusses the existing literature together with the conceptual and theoretical frameworks of the study. The aim of the chapter involves, establishing human rights violation as result of oil exploitation in the existing literature. The main arguments of the chapter involve the paradoxes and structures presented by oil exploitations and human rights violation.
Chapter three describes the overall theoretical framework of the study. The framework is proposed on the ineffectiveness of regulations and laws that govern human rights protection. Additionally, poor enforcement by the government and other agencies have enhanced to violation of human rights by the oil sectors. Chapter three discusses the laws and regulation governing oil exploitation in Kenya. The chapter utilizes the right based approach in the overall conceptual framework In this section, different laws and rules enacted by the Kenyan government will be explored and discuss, and provide the dynamics by which the laws should be enforced by the Multinational Oil companies in order to reduce violation of human rights. Policy recommendations will also be included on oil exploitation and human rights.
History of oil exploitation in Kenya
Over the last few decades, oil and gas discoveries have become a common theme in Africa countries such Tanzania, Uganda, Kenya, Nigeria, and Mozambique. Currently there are more than 19 countries in Africa asserted as significant in oil and gas production with six of these including Kenya, Tanzania, Angola, Sudan, Libya and Algeria. Howe ever for many of these countries, oil exploration is not a blessing rather than a curse. There are different cases on the African continent on the resource becoming a curse. Different oil companies involved in oil exploration areas of which different communities are ravaged by poverty and conflicts face different insignificances. These insignificances result from the responsibilities of companies under the Human Rights universal Declaration that indicates that the overall society and individuals, including business enterprises and the companies must initiate protective measures and enhance in promoting human rights
In the coming years, it is expected that oil resources will be the mainstay of Kenya economy and a source of human rights violations to many of the Kenyan communities. The research focuses on the oil exploitation resulting to human rights violation such as displacement of people, pollution to the environment leading to poverty.
Kenya has involved in different transformations based on institutional aspects that have enhanced to the effectiveness of the economic performance in the last few years. Oil industry in Kenya is a new notion in terms of exploration and mining but it was first established in 2012 by a firm known as Tallow oil under the British management. The oil industry is currently controlled by refining and importation. Oil marketing started in 1903 during the colonial times era. Kerosene was the main import and later gasoline was established and imported. In 1950, Shell Company effectively managed by the Royal Dutch established its first depot in Shimazi area along Mombasa Island. Different explorations were carried out by Bp and Shell in the early 1950s and over the last five decades other companies have tried in exploring oil offshore and onshore and include Chevron, Exxon, CNOOC and Woodside. After the discovery of oil in Uganda in 2006, motivated Kenyans to discover significant opportunity of oil search hence, different localities in Kenya have shown the significance effectively.
Approximately 30 wells drilled in the country although not considered as commercial have effectively indicated hydrocarbons and gas signs. If the country considers effective management in oil industry, it is with high expectation that it will become a producer of oil and hydrocarbon in the coming years. Oil will boost the country’s economic growth in the coming years if the government acknowledges different strategies of managing the resource effectively. On the other hand, mismanagement of the resource can lead to different insignificances and as result will not only impact the country alone rather than the whole of East African regions through the raise of conflicts. According to the Kenyan Government oil statics illustrated that oil sector will boost the economic growth of Kenya in the coming years, and it is one of the objectives and visions of 2030.
Kenya has four basins for oil exploration and includes the Rift Valley basins, Mandela, Anza and Lamu. The fact that these basins have shown high levels of gas and oil resources; they have also created high expectations on large investments interests over the last few years in Kenya. The Rift valley basin is the southern stretch of Lake Albertine near Uganda which is approximated to hold a total amount of oil barrel that approximates to three billion of oil reserves. The Anza basin is situated in the rift system of central Africa and stretches along the South and it is estimated to produce approximately six billion barrels of oil. In North eastern Kenya the Mandela basin extends into Luga basin situated in Somalia.
The billions of dollars expected to be generated from the extraction of oil from the four oil region in Kenya will enhance to the effectiveness and growth of the country.
The Turkana region is faced with pollution, poor quality water, degradation, disruption of farmland, biodiversity, destruction of wildlife and loss of fertile soil. However, the Kenyan government has not proposed a significant strategy of providing compensation on planned mitigation for the different localities affected. People response in these areas is through different campaigns and protects against the multinational activities oil companies that has enhanced to the violation of the citizens economic, cultural, social and political rights in the form of unlawful restrictions, arbitrary detentions and judicial executions. The violation of human rights, as result of oil exploitation has effectively been enhanced as result of imposition of restriction by the security agents and a significant support from the international multinational oil industries. Since the establishment of oil resources in Kenya the violation of human rights has continued and the conditions worsened even at the present. As the violations continue the inhabitants in the regions still receive inappropriate results as the processes of seeking effective remedies against the Multinational oil industries activities as the main cause of the human rights abuses fail.
Oil extraction in Kenya if not properly managed can face a great insignificance and rather than becoming a blessing the results would end up in being a curse.
The oil communities in Kenya have easy accessibility of the resource in accordance to provision of justice and political participation hence, as a result of these disparities linked to ethnicity, may pose a significant challenge to oil exploitation in Kenya and promoting human rights. Inequality has effectively increased due to uneven distribution of revenues as a result of the strong ethnic concepts in the approaches that the government and politics function. The connection between inequality and ethnicity is historically linked to land use and ownership. Corruption and ethnic favoritism are common themes in Kenya enhancing to inequality. Since corruption is linked to a system of patronage, some of the social cultural groups effectively benefit from one another more than others. Other characteristics that would lead to challenging provision in the oil and gas sector include the possession of illegal weapons by individuals in oil areas and disputes that have remained in neighboring countries unsolved.
High risks of conflicts at the sub regional and local levels as a result of the hydrocarbon resources in Kenya can be enhanced by two different aspects that include competition as a result of resource scarcity between the local population and the companies, and nonexistence or unclear oil revenue.
Decentralizing power in the Kenyan government is an effective strategy of obtaining a fair distribution of the resources revenues as a significant aspect of improving service delivery by linking the public policies together with the needs of the community. According to the policy, devolution is enhanced to ensure transparent and efficient resource allocation hence, enhancing equal distribution of gas and oil. The 2010 constitution effectively highlights the devolution as a principle of governance and a national value enhanced with democrat and patriotism.
Kenyan communities under international law and the problems of resource control
In Kenya the survival of many communities depends on the utilization of the natural resources as well as the traditional lands on specific circumstances. Globally, conflicts have risen as result of management, ownership, conservation and utilization of the resources and lands. Such conflicts are common and results from the decisions on utilization of resources and lands to industrial application. This situation provides significant challenge to the people living in these communities hence, causing threats to the societies on their culture and economics. Communities faced with natural resources for instance oil resources do not have a full recognition of their land ownership, a crucial aspects that enhances to the violation of human rights. This is a significant statement that applies in Kenyan communities; where by human rights are violated as result of failures of recognition of land ownership. The overall responsibility of such insignificances is enhanced by the failures of government in defining the laws and policies of protecting human rights from oil exploitation. On the other hand, the Multinational Oil companies neglect the human rights on oil exploitation hence, carryout their activities without further consideration. Human rights are violated in a number of ways in the case of oil exploitation and include, displacements of people, denied the right to land ownership, oil spills impacting the environment and leading poverty.
Oil exploitation situation analysis
Oil exploration has a high impact on the communities living in Kenya as a result of the negative consequences of the activities carried out in these areas. Oil exploration destructs the community’s economies. Despite of the communities initiating different reasons for the consequences resulting from oil exploitation, industries together with the involvement of the government argue that the rights of the communities clash with the projects for development. These arguments fail to propose a significant measure provided with the fact that oil exploitation enhances the economies of the country but does not put into account the aspect of human rights protection. People in the communities relate effectively with their natural resources and land, as result the land is not only a commodity that can be easily acquired but a resource element that is significant to their daily living activities. Oil exploitation has negative effects on such communities including water contamination, displacement of the people, oil pollution and leads to health related insignificances.
People living in communities with oil resources are deprived heavily from their rights resulting to land dispossession, and prevented from their development rights in accordance to their interests and needs. The most significance challenge proposed is the failures of the government to recognize the ownership of the residential rights on their land. The problems faced by people living in these communities include policies and law discriminatory on land ownership, failures of the government and the overall constitution to address the laws governing human rights protection, expropriation of lands for the interests of the country and includes oil exploitation and finally relocation and displacement.
Companies involved in oil exploitation in Kenya
Oil companies operating in Kenya operate under joint ventures between the Kenya government and the Multinational corporations. The manifestation of the joint ventures is enhanced as a result of a nationalized corporate state. The joint ventures in Kenya approximates to 95% of the crude oil production while independent companies operating in these areas include the 5%. According to the Kenya constitution indicates that natural resources for instance oil and gas belong to the government. Multinational companies operating include vivo Energy, national oil and Chevron. Kenya is initiating a Trade Exhibition next year based in oil and gas industry gate way that will attract the leading oil companies in the world. Kenya has highly attracted different oil and gas companies as a result of the availability of the strategic location of the ports and support from the Kenyan government on oil exploitation. The Trade exhibition initiated will fully offer an opportunity to the latest technology and achievements in the regions facing the oil resource.
Multinational oil companies in Kenya
The national oil petroleum is a company that was developed in 1980s, a joint venture that has operated with the Kenyan government with approximately 50% of the Kenya total oil production. The joint venture constituents of Vivo energy (30%), Agip (5%) and effectively operates on dry land or in Lamu mangrove swamp. The national petroleum contributes approximately 50% of the total crude oil in Kenya. The company owns other four companies concessions and includes Amoco with an interests of 50%., national Kenya gas, national Kenya production and exploration, national Kenya oil products and National Development of Petroleum Company.
Mobil producing Kenya Unlimited is a company that has formed a joint venture between Exxon Mobil (30%) and the Kenyan Government (70) and effectively operates along the shallow waters on the Lamu areas. Mobil holds approximately50% of the total interest in oil production. It is with high expectation according to the sources of oil industry that the company is significant in its operation and hence will be in a position to obtain a significant position in production as compared to National petroleum
Agip is an Italian company well known as the Kenyan Agip Oil Company. It is a joint venture that is owned by the Kenyan Oil Corporation (60%) and operated by the Agip Company. Conoco Phillips owns an interest of 20% and Agip 20% and initiates its operation from the onshore fields.
Total Petroleum Kenya Company is a joint Venture between the Kenya National Petroleum Company and Total Elf and produces oil both offshore and onshore. Total and Mobil have faced long term disputes as a result of operational control especially on offshore field.
Impacts of oil exploitation
There are different levels of oil business to prospecting or geographical, production, drilling, refining, distribution that can impact the environment and people negatively. As a result of equipment failure, operational accidents and many other aspects, oil leakage to the environment is probable during oil storage, exploitation, and distribution and processing. This enhances to environmental pollution that affects human activities. Between 1970 and 2012 Kenya has recorded 500 incidents of oil spillage which have led to a significant loss of oil. Despite of the loss to the country, people living in the communities have been affected by the consequences hence leading to violation of their rights. Oil spillage has negative physical insignificances to the people living in this areas arising from preparation of land for seismic activities, access to roads, oil platforms areas, and sample tests pits. The following aspects have enhanced to land deprivation, alienation, degradation and deforestation, and both withstanding the scanty compensation issued to the people living in this communities. Oil exploitation long term effects include crop reduction, coastal erosion soil cover removal and deprive the environment from fertility.
Kenya has four main basins of oil exploration, and has drilled 33 wells by 2012; the towering gas flares resulting from oil burning along the Lamu region have increased concerns to the community on oil exploitation on environmental and health risks. Burning gas has a high impact on the environment that pollutes the environment with acidic precipitation. Sulpher oxides and Hydrogen sulphide is also released to the environment and when they mix with air and water acidic rain is the end results hence, impacting crop production. Putting into consideration the aspects of environmental and health risks associated with gas flaring, the Ministry of Oil and Petroleum together with the Environmental Ministry have proposed a significant policy on Zero gas flaring in Kenya. Many of the Multinational companies in Kenya have attacked the policy as not significant and argue that enhancing the policy on flare initiatives is fundamentally a national policy and an aspect that impacts economic significance and hence, needs huge investments and technology acquisition. Despite of the negative support from the Multinational Oil companies, the government had promised to offer full support by initiating the policy by 2013 but it has further failed and pushed the promise to 2017. Such a challenging compromise by the Kenyan government has clearly indicated how the Multinational companies need to attain the gas flares within the coming years
Gas flares experienced along the Lamu region, Image retrieved from http://ices.or.ke/sectors/oil-gas/
Oil exploitation and impacts on human rights
Socio economic activities exploitation
Oil exploitation and development has high effects on both the cultural and social life of people living in oil resource communities. Oil exploitation violates the rights of the individuals socially and culturally. In this way, farmer’s rights are violated and hence forced to gain other occupation as a result of land degradation enhanced by oil exploitation. Fishermen and farmers unable to adjust to the change of living conditions migrate to other areas for instance, in Kilifi, Mandela, Nakuru towns. The consequence of such movements is as a result of violation of human rights by oil exploitation that leads to unemployment.
Socio- cultural life exploitation
Apart from the various ills and deleterious challenges of oil exploitation, there are different social cultural insignificances that the communities suffer. Certain villages along the Lamu region, Turkana region are displaced hence; their cultural and social life is highly impacted. For instance, the forced displacement along the Turkana region was as a result of massive spillage of oil in 2010. Violation of human rights based on systems that support the society for instance village divinities have been enhanced by oil exploitation activities. Unlike other labor intensive practices such agriculture, the oil industries offer no employment to many of the people in the communities displaced.
Aquatic animals and plants exploitation through displacements
One of the negative impacts of oil exploitation by the industries include the alteration of the ecosystem, oil spills along the Lamu regions into Indian Ocean and in Turkana rivers leading to Lake Turkana impact the aquatic animals. A recent Oil spill in Kenya occurred at Kengen Kipevu Diesel and massively spread into the sea. Impairment of the ecosystem involves reduction and destruction of the aquatic life and fish in the waters. Many of the people living in the communities with oil resources depend on fishing; their rights are violated as result of oil exploitation that enhances to oil spills in the sea hence, impacting the income level of the people in the communities leading to high poverty levels.
In Mombasa a man looks at oil spills destruction, image Retrieved from http://www.africareview.com/Business—Finance/Kenya-battles-marine-oil-spill/-/979184/1317874/-/m72nrg/-/index.html
Human health exploitation
Flaring of gas to the atmosphere has a high impact on the health of individuals. Gas flaring emits different substances to the atmosphere for instance, methane and carbon dioxide that leads to global warming and raise of temperatures indicating that a specific microclimate has already been developed in the areas. Therefore, as result of these pollutants emitted to the environment affects the animals and human beings and causes side effects such as genetic mutation.
Political antics enhance exploitation
From the political perspective, it clearly illustrates that human rights of Kenyan communities living in oil resources have highly been violated as result of political negligence, oppression, injustice, victimization, degradation, intimidation and manipulation without the acknowledgement of the community’s contribution, support and loyalty to the Kenyan country. Gas flaring incidences occurs frequently in the activities of processing and producing oil that deprives the human rights to good health.
The Multinational Oil companies gain effective investments on oil production which is capital intensive and technological. Different laws have been enacted and include the Petroleum Act and the decree act of land Use. The legislation proposed regulatory measures to community access to open access or communal land and hence, deterred from land access and at the same time making it a possible aspect for multinational investors to carry out their activities without any unrestricted access to explore oil. Oil exploration by the Multinational companies is enhanced for the companies to gain huge investments as it violates the human rights.
Despite of the constitution and the new government, there is still deployment of navy, mobile Police and army within the oil facilities across all areas covered by oil resources. Large amounts of finances are dispersed from the government in these regions but still the local communities have not acknowledged the benefits of the fund. According to a report on No compensations, indicates violent incidents within the Turkana region and states that the Multinational oil companies together with the government have failed to enhance their responsibility. The government security forces employed in these areas continue to violate the human rights in these oil resource areas with impunity in protests response hence, indicating failures and lack of commitment in respecting the Human rights.
Land Use Act Exploitation
Oil exploitation in Kenya is enhanced through legislation. The significant legislation related to oil exploitation in Kenya includes the Oil act, Oil pipelines act and the land use act. According to the developed oil act indicates that all oil operational and exploitation activities are enhanced by the government. The Kenyan government has control and possesses the right over all resources in the country and more so, oil resource found in different parts of the country. The act defines mining rights to the Multinational oil companies and hence, gains royalties and rents from these companies.
A significant aspect of the Kenyan law is effectively enhanced in the property law, where by under the common laws of law the notion on land includes the presence of oil minerals in the land. This is not the case with Kenya; where by the overall act excludes the aspect of oil minerals signifying land. Poor laws enhanced by the Kenyan government violate the communities from land ownership by raising the concerns in injustice enhanced by the federal government.
Legal framework and policy of oil exploitation management in Kenya
Different policies and laws have been enacted in managements of oil exploitation at both the national and international levels. These policies and laws are provided in different sections that include the oil pollution Act of 2001, related regulations and laws on petroleum.
Kenya Oil pollution Act
The proposed Act on oil pollution is responsible in managing pollution related aspects caused by oil exploitation. The Oil Pollution Act defines an effective strategy on pollution management and prevention. Pollution from oil exploitation involves oil spills that lead to land degradation, water contamination. The main aspects involved in the Act involve reducing oil spills that renders to pollution over the land and waters. The act also designed a comprehensive approach to ensure that financial resources are effectively allocated on oil spills and hence compensate to all individuals affected by the oil spills. The act also ensures that response system from the government is effectively prepared in order to manage the effects resulting from oil pollution and expects the oil companies to effectively enhance measures in prevention of oil pollution that is hazardous to human beings.
Regulations and laws related to oil exploitation in Kenya
According to the Kenyan law, indicates that all natural gas, mineral oils are owned by the government. According to the Petroleum Act indicates that a license is supposed to be obtained from the petroleum resources ministry for any activities involving oil operations, exploitation, storage, production, drilling and transportation. The petroleum and oil exploitation in Kenya is responsible for all oil companies’ activities. Multinational oil companies operating in Kenta are obliged to adopt applicable precautions in order to prevent oil pollution. These companies require effective installations of machines that are in good repair in order to deter from oil wastage and spillage. The environmental impact Act requires the assessment of Environment impact as a result of oil exploitation. Both the private and the public sector link in order to provide effective consideration to the effects of oil exploitation to the environment.
Hydrocarbon pollution and oil spills and human rights violation
The official estimates proposed by the Kenya National Petroleum corporation indicates that approximately 2000 cubic meters of petroleum are spilled in approximately 300 incidents annually. Despite of the small fields in Lamu, Anza and Mandela, there are different pipeline networks that have led to massive leakage of oil. Many of these flow lines and pipelines are subjective to corrosion require replacements since they are old. According to oil pollution act requires all the companies responsible for oil spillage to clean and restore the original state of the environment. Despite of the long term consequences on environment, oil spills impacts directly individuals in these areas. Oil leaks spurt on large areas since they originate from the pipelines with high pressure destroying the crops and polluting the waters used for farming fish. Just a small leak of oil can finish all crops impacting the residential income. Such consequences can lead to high cases of poverty.
There are two cases of oil spills in Kenya that occurred in Mombasa and in Rift valley. In 2000 more than 100 people died as result of oil spill from oil transportation and in Mombasa, oil layers stretched along the Indian Ocean affecting fish farming. According to the anti-corruption team in Kenya, incidences of oil spills occur frequently as result of government negligence in defining effective laws and policy that need to be implemented by the Multinational companies in carrying out oil production activities. Kenya Ports Authority manager asserted that as a result of oil spills in Mombasa beach, resulted to long term impacts to both the marine and humans. In different communities living in the oil installations, oil spills incidences are not common but sheen of oils on the water can be seen where many villages depend on the water for many of the house hold activities. In 2012, samples were retrieved from the water used for house hold activities by the communities and analyzed and illustrated high contents of hydrocarbons in the water not suitable for human consumptions. Therefore, oil spills from the multinational oil companies have caused devastating challenges to human beings not simply because of lack of negligence but, as a result of weak laws and policies that do not consider on human rights protections.
Human rights addressing the oil exploitation
The self-determination rights is predicated on the affirmation of philosophy of the human drive to reality aspiration and coupled with human equality postulates.
Kenyan constitution, Article 44 indicates that all citizens have the right to exercise self-determination. This signifies that people have the freedom to pursue their cultural, social and economic development and political states.
According to the recent happenings on oil exploitation in Turkana region, the right of self-determination law can be asserted as insignificant as freedom of people on their economic, cultural and social aspects was violated.
Right to natural resources and land
The symbolic meaning of land according to mmm 6666 states that land is not just a possession or a production means but rather an indicator that nurses different implications, therefore it is not a material that can be acquired nut rather a material that an individual’s enjoys with a lot of freedom
According to the UN article 17 of Human Rights declaration states that every citizen has the right to own property hence nobody is subjected to being deprived of the right. This is a different case according to the Kenyan Law where by indigenous land titles are overruled in accordance to the interests of the public that include importance of oil exploitation and development and hence the government compensates with little sums. Article 64 of the Kenyan constitution states that people will be subjected to dispose their natural resources and wealth as the right is exercised in accordance to people interests
Right to environment
According to Stockholm Declaration in Principle 1 states that an individual has the right to freedom, adequate and equality conditions of life in a quality environment that allows dignity of wellbeing and life acknowledging on the responsibility if improving and protecting the environment for future and present generation. Rio Principle states that it is significant for the government to create effective laws regarding damage and liability for individuals faced with environmental change. According to Article 42 of the Kenya constriction states that all individuals shall possess the right to satisfactory and general conditions to development. In section 20of the constitution is non-justifiable at the national levels and indicates that the government shall enhance improvements and protection to the environment and safeguard the land, air water, wild life and forest of Kenya. With the several incidences of environmental pollution in Kenya, the provision of this law has been viewed as complementary with political and civil rights.
According to the Degree of 2001 on environmental impact requires assessment of the environmental impact of new projects which can formulate high impacts to the ecosystem. This includes projects on oil development and exploitation. The Act states only new projects what about projects that have been on the past?
Justice access rights
Kenya constitution Article 48 guarantees the right of justice and fair hearing. Section 42 provides the states and the Federal; High courts provide justice to violation of human rights. Unlike other countries such as Indians, over the years, the Kenyan system has been insignificant as result of lack of independence, bureaucratic delays, poor compensation rates for communities members and corruption. Currently, the judicial decisions have provided a glimmer of hope in the rights of justice to the Kenyan people. According the National human rights Commission effectively protects and promotes Kenyans human rights. However as result of financial autonomy and lack of independence which has highly undermined the effectiveness of the NHRC effectiveness. The NHRC fails to recognize the community as a venerable group rather than establishes venerable groups.
International standards of human rights
According to the international human rights law states that people or communities living in oil resource areas require protection from oil exploitation. In this approach, the communities are provided with legal protection against private encroachment and state on their resources and lands including protection against exploitation of their lands and resources by Multinational companies. In Kenya, especially communities situated in oil resources are denied the rights of land ownership and resources hence forced to seek human rights internationally for their rights protections. According to the international human rights law, offers four categories of human rights protection from oil exploitation and involves specific indigenous human rights protection, ordinary community human rights, specific community rights and indigenous people rights.
ILO No 169 convection on Tribal and Indigenous people
The International Organization Labor Convection proposes the recent convection on both the tribal and indigenous communities. It establishes a set of standards for the rights of communities and people leaving in resource areas for instance oil areas. It is significant in different areas concerning oil and gas exploitation in communities. According to the ILO 169 convection indicates the significance of respecting the cultures, values of the communities in accordance to resources and lands as significant to their core lives. According to the Experts Committee on Convection Recommendations and application asserted that these provisions are significance in activities associated with oil exploitation. The committee obliges that it is significant for the government to ensure that communities in areas faced with oil resources are fully protected for their rights.
In article 14 of the convection indicates that the government and the Multinational oil companies need to recognize possession and ownership of land to the people in the community. According to convection effectively states that the community requires legal rights that offer protection on land ownership and possession.
On the other hand, the convection article 16 prohibits forced displacement of people living in areas covered with natural resources. The Article states that displacement of people is only considered as necessary if an agreement is made between the government and the communities. In oil exploitation cases, the article protects the human rights as a result of force displacements. Finally, Article 7 proposes convections pillar on oil exploitation on community’s territories and lands. According to the article, people leaving in the communities have the right to own their lands, exercise control towards their cultural, social and economic developments. The article obliges the government to promote human rights by taking measures to present and protect the environment.
Analysis of gaps in the legislative framework and policy
Kenya has different environmental policies and laws but many of these laws are not enforced. Lack of understanding and knowledge on these laws among the companies has enhanced to negligence in different areas. In the sector of oil exploitation, the government has enacted the laws and policies but still the companies do not enforce them. Even with the acknowledgement of the laws there is still little on enforcements.
Kenya centralized oil industry governance structure still leaves communities without statutory or constitutional rights, consent or voice on oil exploitation by oil producing companies.
Government infrastructure or poorly designed facilities have contributed to the endangering of human rights across the communities. Petroleum industry are obliged to follow the international safety on environment in their activities but the federal regulatory agencies in Kenya that include the Petroleum Recourses Department, National Environmental regulation agency, and the national response agency on oil spill with the rule of law have indicated that such requirements based on environmental safety are still not enforced.
High levels of inequality, unemployment, poverty, underdevelopment of infrastructure in Kenyan communities compound to the negligence of the laws and regulations proposed by the International legislative framework in protecting the human rights. The policy and laws representing compensation are still not enforced. In this case, the law has been relegated and bastardized to background as a means of corruption. This signifies that an effective and relevant action needs to be enhanced in order to make the judicial framework significant.
The Kenyan National Petroleum Corporation is effectively controlled by the Ministry of energy and the overall department lacks autonomy especially in areas that focuses on decision making that are unnecessary and bureaucratic delayed. The operation of the Ministry is characterized by ineffectiveness in handling oil activities and violation of human rights.
The following research study has indicated that the Multinational oil companies in Kenya influence violation of human rights in communities faced with oil resource. Additionally, the study has explored that the legislative framework is still weak in Kenya and certain policies are not enforced by the oil companies in protecting the human rights.
There is need to strengthen the judicial systems especially in areas that focus on oil exploitation and human rights violation. The communities need to understand the terminologies of oil resources and the legal framework significance in protecting their rights. This serves as an approach of assisting in strengthening the application of human rights legislation in the judiciary. The legal framework on human rights management requires an improvement that could effectively enforce the existing rules and regulations both on pollution and oil spills. Changes made in Kenya enforcement of human rights regulations will need to build effective support in order to ensure effective enforcement of the regulation. The changes include long term aspects and hence, creating awareness is significant to different stakeholders such as Multinational oil companies and the judiciary. Additionally, human rights education is significance in creating awareness that strategize in promoting change of behavior and management of oil activities that can lead to violation of human rights. Different initiatives can be developed in order to target different audiences for instance, people in the community, government and Multinational companies. The programs can effectively accommodate the human rights protection from oil exploitation without the inclusion of other resources.
Another significant policy recommendation involves encouragement of the regulation amendment of the oil companies in order to address the human rights and social impacts of the Multinational oil industries. This includes the assessment of the significant effects on human health, access to clean livelihood and water, and effective transparency to information for the communities affected. Compensation laws require effective amendment and include the Petroleum and Pipeline act provision in order to distribute the finances effectively without any inclusion of corruption cases.
The following study concludes that human rights violation and Multinational Oil companies poor regulations are enhanced by different combination factors that include, poor legal framework that denies rights to natural resources and land, negligence of environmental considerations, poor enforcements of laws regarding environmental protection and people, corruption in the Kenyan government and oil industry and the ineffectiveness of different judicial systems and human rights commissions. All these aspects are still enhanced up to date. The following study is significant as it analyses how regional and national institutions can be strengthened in order to provide human rights protection effectively.