Sustainable Exploitation of Natural Resources in Kenya: A Case for Communities’ Free, Prior and Informed Consent in Oil and Gas Projects

by | May 19, 2020 | ANUL, ANUL 2019 I1

Sustainable Exploitation of Natural Resources in Kenya: A Case for Communities’ Free, Prior and Informed Consent in Oil and Gas Projects

Authors Rodgers Otieno Odhiambo

ISSN: 2521-2613 Affiliations: Source: Africa Nazarene University Law Journal, 2019, Issue 1, p. 1 – 23

Abstract

This article attempts to analyse the development of free, prior and informed consent (FPIC) as an international law principle, its nature and its essence. Further, the article seeks to illustrate the advantages of the principle in natural resource development. Indeed, the principal aim of this article is to bring the development of an international law principle useful in the exploitation of natural resources to the attention of Kenyan legal scholars and policymakers. This is crucial in the context of Kenya which has no experience in the exploration and exploitation of oil and gas, and in view of the fact that the country has embarked on various legal and policy reforms within the extractive sector. Being a frontier market, Kenya needs to learn the nuances within the oil and gas sector. It would therefore be imperative to examine the jurisprudence of international bodies and the activities of other international actors with regard to communities’ participatory rights, while recognising that a new standard of international law has developed which recognises that there is a duty to obtain the FPIC of local and indigenous communities when undertaking extraction of natural resources activities within their locality. Thus, the paper seeks to explore the development of the duty to obtain FPIC in international instruments such as declarations, treaties and Acts by international bodies. The article concludes by making a strong case for the entrenchment of FPIC within the policy and legal framework governing the extractive sector in Kenya.

Insurgency, Islamic Fundamentalism and the Boko Haram Conundrum: Engaging the Contest between the Right to Religion and Supremacy of the Constitution in Nigeria

by | May 19, 2020 | ANUL, ANUL 2019 I1

Insurgency, Islamic Fundamentalism and the Boko Haram Conundrum: Engaging the Contest between the Right to Religion and Supremacy of the Constitution in Nigeria

Authors MO Adeleke, LA Raimi & Olusola Babatunde Adegbite

ISSN: 2521-2613 Affiliations: Source: Africa Nazarene University Law Journal, 2019, Issue 1, p. 24 – 45

Abstract

This article examines the issue of national security and development through the prism of law and religion and its nexus with the tide of insurgency. To achieve this, it starts with a retrospective analysis of the development of religious extremism and violence as a form of political ideology in Nigeria. It then proceeds to engage the post-independence issues of religious violence that manifested in the form of Islamic fundamentalism, which found enough ground to fester, and was never properly addressed. In situating these issues, this article proposes that for Nigeria to overcome the current state of insecurity there must be a conversation establishing the nexus between the monster of insurgency and the masked rise of ‘political Islam’. This article concludes that in addition to necessary constitutional reforms, for Nigeria to reach its full potential, there must be a collective decision to respect section 10 of the Constitution as the supreme law of the whole country, and this must be backed up by a corresponding strong political will on the part of government.

An Appraisal of Procedural Environmental Rights in Tanzania’s Extractive Sector

by | May 19, 2020 | ANUL, ANUL 2019 I1

An Appraisal of Procedural Environmental Rights in Tanzania’s Extractive Sector

Authors Elifuraha Laltaika

ISSN: 2521-2613 Affiliations: Source: Africa Nazarene University Law Journal, 2019, Issue 1, p. 46 – 63

Abstract

Some laws and policies governing the extraction of minerals, oil and gas in Tanzania offer insufficient protection of substantive human rights. This is partly because the law’s founding objective was not to protect community interests, but rather to expedite foreign direct investment while simultaneously protecting the sanctity of private property as an enabler of respect for transnational contractual obligations. Specifically, the laws in question are emblematic of the broader ‘neo-liberal law and development thought’, characterised by the primacy of the market in human relations. Yet extractive operations put resources on which local communities depend, such as drinking water, forests and biodiversity, at risk. This article investigates whether, by using procedural environmental rights, aggrieved communities and individuals in the country can successfully challenge potentially human rights-abridging and environmental protection-blind decisions through available avenues in the country’s justice system. One of the article’s key points is that by becoming one of the first African countries, and so far the only one in East Africa, to subscribe to extractive industries’ transparency initiative (EITI), and by enacting a law to operationalise EITI principles, Tanzania exhibits unwavering commitment to bringing new dynamics to the extractive sector. However, by disallowing environmental considerations and community consultation requirements from forming part of the conditions for granting resource extraction licence, participation is reduced to a mere technical enterprise or ‘box-checking’.

Public Participation and the Right to Development in Kenya

by | May 19, 2020 | ANUL, ANUL 2019 I1

Public Participation and the Right to Development in Kenya

Authors Anthony Wambugu Munene

ISSN: 2521-2613 Affiliations: Source: Africa Nazarene University Law Journal, 2019, Issue 1, p. 64 – 85

Abstract

The principle of public participation has for a long time been an important feature of human rights law especially with regard to the right to development. This principle has been significant in giving meaning to international human rights instruments and has been a constant theme in many declarations, recommendations and resolutions of the United Nations. At the African regional level, the African Commission on Human and Peoples’ Rights and the African Court on Human and Peoples’ Rights have both highlighted the central role that participation of the beneficiaries in their development plays in the implementation of the right to development. Under the Constitution of Kenya 2010, the general rules of international law and treaties and conventions that Kenya has ratified form part of the law of Kenya. The Bill of Rights in the Constitution sets out several fundamental rights and freedoms with the caveat that it does not exclude other rights and fundamental freedoms not included in it but which are recognised and conferred by law, such as the right to development. This means that the right to development, as provided for in the United Nations Declaration on the Right to Development and the African Charter on Human and Peoples’ Rights, is a fundamental right known to Kenyan law and enforceable as such. The Constitution further sets out participation of the people as one of the national values and principles of governance in Kenya. This contribution explores the law, policies and practices on public participation as an enabling principle in implementation of the right to development in Kenya.

‘Great Expectations’: The National Industrial Court and its Prospects of Furthering Social Rights in Nigeria

by | May 19, 2020 | ANUL, ANUL 2019 I1

‘Great Expectations’: The National Industrial Court and its Prospects of Furthering Social Rights in Nigeria

Authors Nsongurua Udombana & Ngozi Udombana

ISSN: 2521-2613 Affiliations: Source: Africa Nazarene University Law Journal, 2019, Issue 1, p. 86 – 114

Abstract

The Nigeria Constitution 1999 makes the application of treaties contingent on their domestic transformation through a legislative enactment. This requirement, coupled with the question of justiciability, poses challenges to the judicial interpretation and application of economic and social rights, in particular. A recent amendment to the Constitution permits the National Industrial Court (NIC) to interpret and apply labour rights guaranteed in treaties, though they may not have been transformed into municipal law. Working on the premise that courts have a critical role to play in realising social rights, we argue that this development gives the NIC a rare opportunity to advance social rights. We call on NIC judges to boldly deploy their enhanced mandate to interpret the relevant labour-related treaties in ways that advance social rights in Nigeria.

The Dilemma of Electricity Pricing and Cost Recovery in Nigeria: Repositioning the Law to Balance the Interests of Investors and Consumers

by | May 19, 2020 | ANUL, ANUL 2019 I1

The Dilemma of Electricity Pricing and Cost Recovery in Nigeria: Repositioning the Law to Balance the Interests of Investors and Consumers

Authors Uzezi Okpoudhu, Dr Peter Kayode Oniemola & Dr Eddy Lenusira Wifa

ISSN: 2521-2613
Affiliations:
Source: Africa Nazarene University Law Journal, 2019, Issue 1, p. 115 – 137

Abstract

The Nigerian electricity sector has been privatised and is transitioning in a competitive market. The law requires that tariffs should be cost reflective, attractive to investors and affordable to consumers. The challenges of balancing the interests of investors and those of consumers have been a bane to the development of a competitive electricity market. The progress made in the African countries of Tanzania and Kenya is commendable. This article analyses the conflicting interests, and offers solutions on how the law could be employed to balance the interests of investors and consumers in the Nigerian electricity market.