Land on which minerals and mineral oils stand regarded public

On two accounts, I have listened to high level presentations by Tullow Oil. Tullow came and found home in the otherwise arid, and until fairly recently, rather marginalised North. They prospected for and struck oil in Turkana. But the trouble with things on or below the earth’s surface is that their exploitation is tied to land ownership. The government, communities, individuals or companies will always stake some claim to such land. That calls for negotiations. And these can be hard. Luckily, our constitution and law categorises all minerals and mineral oils as public land. But where such land was previously community or private, due compensation must be paid in converting it for public use. Therefore much as Tullow struck oil, they wouldn’t move until they had guarantees to the use of the land under which they found oil. Moreover, once pumped out, the oil must be transported to consumer markets. The existing roads don’t provide a good option since this is cumbersome and slow. So a pipeline to the coastline, along the proposed LAPSSET corridor right down to Lamu Port, is preferred. This spells acquisition of the affected community and private land. Hence more negotiations over the affected land!

Oil transportation corridor needed

The construction of an oil pipeline to the coast could perhaps be a silver lining for Kenya. It provides good economic justification for the opening up of a second transport corridor parallel to the existing one which runs from Mombasa to Uganda through Nairobi and Western Kenya. This first corridor has informed and defined development in Kenya since commissioning by the colonial government early in the 20^th century. Most of the existing national road and rail network is either part of or offshoots from this corridor. Regions that are far from it ended up lagging behind in development for obvious reasons. So the proposed second corridor, which will serve the transportation of oil from Turkana among other things, should be a welcome extra to the country. It will not only help to open up large parts of the North to intra-regional commerce, but will to a large extent also help to integrate the economy of Northern Kenya to that of the rest of the country.

Tenure rights for well sites and corridor

The Tullow oil project will supposedly drive major gains for region and country such as direct and indirect jobs, consumption of vast amounts of construction material and the establishment of much needed infrastructure, including water points for people and livestock. The project is also expected to greatly raise Kenya’s geopolitical profile, something quite enviable globally. While appreciating all these, one hopes that any communal or private land rights affected by the oil well sites or the transport corridor will be carefully identified, negotiated and compensated. Without this the noble oil project will suffer delays or even stoppage as land right contests play out later. This happened during the titanium mining project in Kwale. It has and continues to play out on the Mombasa-Kisumu Special Gauge Railway project. Once acquired, the pipeline corridor should be cushioned from speculative and incompatible land uses through existing planning legislation. It should perhaps be gazetted as a special planning zone as was done to protect the Konza City periphery a while back.

Compensate those legitimately affected

But in compensating those affected, public money must be put to optimal use. Care must be exercised not to lose it through unduly exaggerated compensation rates or paying for non-existent land parcels. Where county governments have to receive payments on behalf of communities that hold unregistered land, mechanisms must be found to ensure that such money impacts the livelihoods of targeted communities. This could for instance be ensured by incorporating community leadership in the decision making processes for the use of such money. And such arrangements must be effectively explained to the targeted communities in good time to pre-empt their opposition to the project. Furthermore, previous studies by the Land Development and Governance Institute on the LAPSSET corridor within Lamu and Isiolo Counties revealed that for patriarchal communities, compensation proceeds to private landowners almost exclusively end up in the hands of male household heads who usually spend it at will, and not necessarily on their families. This exposes rather vulnerable spouses and children to threats of eviction without alternative land for settlement, and lack of money for basic needs.

Respect tradition and cultural sites

To prevent such social-economic challenges, methods must be devised to ensure transparency and responsibility by the compensation beneficiaries. The study also revealed community frustration that some sections of the transport corridor are planned to pass through cultural and grazing pasture sites. Such sites are priceless to indigenous and pastoral communities and therefore avoiding them should be a design priority. There will also be lots of local and national concern on the kind of measures put in place to mitigate any adverse environmental impacts under, above or on the land. Tullow must hence demonstrate that such measures have been incorporated for the life of the project and after.

Above all these concerns, the local consumer looks forward to better oil prices once Kenya’s oil hits the market.

Dated 1^st December, 2018