Central to all investor and company activities is “do no harm,” according to the IFC Performance Standards, especially if investments or activities are involving communities in developing countries, which can be marginalized and vulnerable or define themselves as indigenous peoples. So what is behind the term indigenous peoples?
There is no specific definition, but characteristics. According to United Nations Declaration on the Rights of Indigenous Peoples, Indigenous peoples are mainly small populations relative to the dominant culture in their country, they usually have their own language and distinct cultural traditions, which are still practiced. They have (or had) their own land and territory, to which they are tied in myriad ways, and what is more important they define themselves as indigenous peoples.
Kenya does not recognize the concept of indigenous peoples, but it does specifically include minorities and marginalized communities in the 2010 Constitution.
In 2006, the African Commission on Human and Peoples Rights identified the Turkanas, Samburus, Rendille and El Molo people as indigenous peoples.
Internationally, indigenous peoples have specific rights according to UN Declaration on the Rights of Indigenous Peoples (UNDRIP) and ILO Convention 169. This means, that wherever a company wants to do business it has to pay special attention to indigenous peoples. And this why the consortium drafted an Indigenous Peoples Policy Framework in 2011, which says:
“Project screening and Environmental and Social Impact Assessments (ESIA) have been undertaken and Indigenous Peoples as defined in Section 4 have not been identified within the footprint of the Project. However, due to the proximity of the project to the pastoral areas of these communities, it has become necessary to prepare an IPPF as a precautionary measure in case marginalised groups are encountered during project implementation”.
And it continues specifically about the Turkanas, Samburus, Rendille and El Molo: “It is clear that while most of these tribes are considered marginalised at international, regional and national levels, they have the same chance under this project to voice their concerns if their rights, interest, needs, livelihood, culture or desires are affected. Therefore, (…), the concept of Indigenous Peoples has been narrowed down to a special hunter-gatherer community or the El Molo … So far there is no indication that the Project will adversely impact the El Molo as they are located approximately 70km to the north of the Project footprint. As such the nature and extent of the likely impact is unknown.”
If by chance indigenous peoples are encountered, then the consortium will “fully comply with all the guidelines and implement comprehensive mitigation strategies”, the Indigenous Peoples Policy Framework states.
Samburu warrior in Gatab. One of the four tribes not recognized as indigenous by the consortium.
“This is a bit strange,” says ass. professor and expert in human rights and indigenous peoples, Bas Rombouts of Tillburg Law University.
“It is certainly remarkable that the El Molo are considered indigenous, while the other three groups are not. I am very curious how that qualification was made. Especially, how did they involve the communities? These are very important questions, in my opinion.”
The quality and character of the consortium’s Indigenous Peoples Policy Framework is inadequate, according to Marianne Wiben Jensen, Africa Programme Coordinator for the International Work Group for Indigenous Affairs (IWGIA).
“A company cannot claim that certain peoples are not to be considered indigenous if these peoples themselves both self-identify as being indigenous peoples and meet the international criteria set out by the UN and by the African Commission for Human and Peoples’ Rights (ACHPR) for identification of indigenous peoples. The claim of the consortium’s Indigenous Peoples Policy Framework that has been approved by the Kenyan government is therefore very questionable and not in line with the conceptualization of the ACHPR. The Samburu, Rendille and Turkana people are generally considered to be indigenous peoples by the indigenous peoples movement in Kenya as well as by the ACHPR, which is the main authoritative human rights body in Africa”.
Birgitte Feiring, senior adviser at the Institute for Human Rights and former senior adviser for the International Labour Organisation on the Rights of Indigenous Peoples, agrees.
“First of all, it is not a company’s responsibility to identify who are indigenous people or not. Instead, we have a system of internationally recognized objective and subjective identification criteria. The objective criteria are whether a people have a historic presence in the area, predating the creation of a state, colonisation or conquest. I don’t think anyone would question that in this case. These peoples have their own institutions, languages, and ways of life, as well as an independent identity, which is another objective identification criteria. The third international criteria is whether they identify as indigenous peoples, which they have confirmed that they do,” Feiring says.
Nongala, Turkana woman, living in Sarima.
When dealing with land acquisition by a state or a company, IFC Performance Standards are absolute “minimum standards,” Feiring adds:
“Many land-rights conflicts arise when the government gives away concessions to land that are not theirs to give. The government is obliged to examine both what resources they are giving away to others, and whether there may be existing ownership of the land. It is not the case that because these people do not have a deed to the land, they have no rights to it or to the surrounding area, because their rights to the area are based on historical rights.”
Bas Rombouts, Tilburg Law University, agrees: “It is often a major problem that the formal ownership of the State or private persons overlaps with the customary rights of indigenous peoples. Very often, indigenous and local communities with customary rights or usage rights can easily be put aside”.
Danwatch asked the consortium, how a consultancy firm can define, who are indigenous peoples or not, when this is a matter of self-determination according to ILO 169 and UNDRIP?
The consortium says in a written statement: “LTWP has and will continue to engage in a consultation process with all the affected communities within the wider Project area. Throughout the Project’s lifecycle we aim to inform the affected communities about the Project, identify their views, and obtain their broad community support”.
The Danish Export Credit Agency says to Danwatch: “The question about indigenous peoples have been assessed by several independent consultants, CSR-specialists with Mott MacDonald have made this assessments for the lenders, which EKF are a part of. The conclusion is that the project meets international standards, also when it comes to the consideration of indigenous peoples. EKF pays attention to the fact that the projects stakeholder- and consultation process includes all tribes, whether directly or indirectly affected by the project”.
In a recent report by Business and Human Rights Resource center, Renewable Energy and Human Rights: An Outreach to Companies, Lake Turkana Wind Power is asked about their consultation procedure concerning indigenous peoples (FPIC). FPIC is short for free, prior and informed consent, which is a specific right for indigenous peoples.
In this report, the consortium answers: “FPIC is required when indigenous peoples may be adversely impacted by the Project. As mentioned, the LTWP Project underwent rigorous feasibility studies and it was determined that there are no indigenous people adversely impacted by the Project. Therefore the Project was not required to undertake FPIC”.
A statement, which clearly contradicts the Export Credit Agency and the consortium’s other statements about indigenous peoples. There were not free, prior and informed consent, says Alba Espinoza Rocca, Programme Officer with CORDAID:
“A critical violation is the project’s failure to obtain Free, Prior and Informed Consent (FPIC) from local indigenous communities. FPIC requires full, meaningful and comprehensive information on the project and its alternatives to the affected communities, upon which the communities then make a final decision about it. LTWP held meaningless self-promotion meetings, where no information was given, the few critical voices were ignored, and the people who were invited to attend the meetings were approached in advance. Such meetings do not constitute FPIC”, Rocca says.
Free, Prior, and Informed Consent (FPIC) by the International Labor Organisation (ILO 169)
The concept of free, prior and informed consent in the ILO applies to the Indigenous and Tribal Peoples Convention of 1989 (No. 169). The Convention deals primarily with the concepts of consultation, participation, free and informed consent, appropriate procedures, and prior consultation in specific circumstances.
Article 7: The peoples concerned shall have the right to decide their own priorities for the process of development as it affects their lives, beliefs, institutions and spiritual well-being and the lands they occupy or otherwise use, and to exercise control, to the extent possible, over their own economic, social and cultural development. In addition, they shall participate in the formulation, implementation and evaluation of plans and programmes for national and regional development which may affect them directly.
The improvement of the conditions of life and work and levels of health and education of the peoples concerned, with their participation and co-operation, shall be a matter of priority in plans for the overall economic development of areas they inhabit. Special projects for development of the areas in question shall also be so designed as to promote such improvement.
Governments shall ensure that, whenever appropriate, studies are carried out, in co-operation with the peoples concerned, to assess the social, spiritual, cultural and environmental impact on them of planned development activities. The results of these studies shall be considered as fundamental criteria for the implementation of these activities. Kenya has not ratified ILO 169.
Source: ILO, article 7
No compensation for lost land
Eventually, representatives from the communities – how many and on whose behalf is disputed – agreed to give up the land for a certain compensation, and later, in 2014 a memorandum of understanding (MoU) was signed that allowed the consortium to resettle the village of Sarima, despite the fact that not everyone agreed with the decision.
The 1180 Turkana people were resettled and entitled to compensation according to the consortium’s Resettlement Action Plan (2012). Some of them say, they received approximately 13,000 Kenyan shillings (EUR 113) in compensation for taking down, moving and rebuilding their 306 manyattas in the new location.
“We were given 13,000 Kenyan shillings per household. It lasted for a few days after budgeting for food and other things,” says Edapal Losike.
He is 39 years old and derives his livelihood from tending livestock in Sarima village. As one of the village elders, Losike is involved in all decisions on behalf of Sarima.
According to the consortium’s official statement, the size of compensation is 49,000 KES per household, which translates into 12,250 KES per person in an average household of four for disturbance allowance and the costs of moving and restoring their manyattas. This was in compliance with the IFC Performance Standards and the Environmental and Social Sustainability Policy in place at the time (2009), they say.
During 2013, other representatives from the communities started wondering how the communities lost their rights to the land, which was now privatized and leased to the Lake Turkana Wind Power project under a 33 year term, renewable up to 99 years, the resettlement action plan from 2015 states.
The communities were not entitled to compensation for lost land, according to the consortium Resettlement Action Plan.
“The nomadic pastoralists have customary rights of use to land pastures, however, have no recognizable right or claim legal right or claim to the land other than use and are therefore not eligible for land compensation”.
In September 2014, representatives of some of the communities in the region filed a lawsuit against the Lake Turkana Wind Power project for illegal land acquisition.
Questions about land rights remain
On the windy slope of Mt Kulal, Simon Lenarokishu, the former chief of the Samburu in the Gatab community, clearly remembers being consulted before the land was given away.
“They asked us about the land. They said they would provide jobs, and therefore a land lease was signed in Marsabit County,” he says. Lenarokishu is very pleased with the wind power project, which he says has brought development into the Marsabit region, one of Kenya’s poorest areas.
The current chief of Gatab, Hosea Lemuni, agrees with him.
Chief of Gatab, Hosea Lemuni, Samburu.
“Actually, we appreciate the wind power project, because it has created job opportunities for our local community, and we are very happy. The work has started. It has employed most of our people in casual, even in semi-skilled, jobs. It has employed a large number of people – more than 100 people from this locality – even from Loiyangalani and South Horr. So income generating has at least come up, and the community has really benefitted”.
In Gatab on Mt Kulal the temperature is cooler and green plants and trees dominate the landscape. People here keep cattle, goats and sheep, unlike in Loiyangalani and Sarima, where they mainly herd camels and goats. The way to Gatab is a winding dirt road: hard to access in dry weather, and nearly impossible when the rain comes because of the risk of mudslide. Water has an impact on Mt Kulal in many ways.
Mr. Lendany, Samburu elder, says he was never consulted before the land was given away. He is contradicted by the Leaders of the Samburu community i Gatab.
An old man sits under a tree, observing our interviews with the current chiefs with a hidden smile on his face. Mr Lendany is an elder from the Samburu tribe on Mt Kulal and any important decisions over the last many years should have gone through him.
“I was not a part of it, the land had already been given away. If they had called me, I would never have agreed to give it away, because that place serves a purpose. If it rains, we go there (the project site, ed.),”he says.
“About ten years ago, they came in, and we talked about the project. They said they would make a health clinic, schools and roads, but the roads is the only thing that has happened. This is the truth,” he says. “Then the leaders sold the land and our elected leaders are the only ones who benefitted.
The people never benefitted”. On our way out of Gatab, we meet a young Samburu man watering his goats at a well. Kollom Ogam is 20 years old, and he is familiar with the wind power project. Three years ago, he applied for a job there, but he wasn’t hired. When asked when he heard that the land had been given away, he says, “I hear about it now.”
In Loiyangalani, a nearby village by the shores of Lake Turkana, Paul, an environmentalist, who belongs to the El Molo tribe and lives in Loiyangalani, is fine with the project, although not how the land was given away, he says. Paul is a part of Sarima Indigenous Peoples’ Land Forum (SIPLF), the network that is trying to join communities in the lawsuit against Lake Turkana Wind Power project.
“There was no participation for the communities and consultation was done in Nairobi, far away from the local man. Even today, people don’t have all the information about how the land was given away,” he says.
The right of the communities to the land is beyond question, says Odenda Lumumba, Chief Executive Officer of the Kenya Land Alliance, an umbrella organisation for more than eighty NGOs and individuals defending land and human rights.
“First, the community land constitutionally belongs to the community members, severally as individuals and collectively as groups. They are eligible owners of those lands as per the Constitution, which recognizes and places the obligation on the state to recognize, protect and register community land.”
Lumumba elaborates, “secondly, the Constitution provides for compensation to be paid to occupants in good faith of land being acquired under Clause 3 of the same article, who may not hold title to the land. This very article can apply to the case in question and hence their eligibility to compensation is not in question,” says Lumumba.
Liz Alden Wily, an international tenure specialist presently a visiting scholar at the Leiden School of Law also points to the new constitution:
“The government is obliged to fully identify existing rights to the land. If the project is genuinely for a public purpose then compensation has to be sufficient. Nor can lands taken be expanded without further consultation. Constitutionality also has to be borne in mind. The Constitution in force at the time was clear that this land is owned by the people although held in trust for them by the County Council. The new Constitution is even clearer: this land is community property. The forthcoming Community Land Act will guide communities how to secure evidential title of this fact and to sort out their complex tenure among themselves towards this registration. This is the kind of inclusive economic development strategy that communities all over Africa expect today”, says Wily.
The Plaintiff through their Lawyer Ms. Hashi, in her submission to court emphasizes that: “The communities have only one question before this court: Was procedure of allocation and/or alienation of 150,000 acres of community land, as mandatorily set out in the repealed Constitution Section 117 and section 13 of the Trust land Act, complied with? If any non-compliance in the process is found this negates the validity of the final document (title).
The matter of the illegal acquisition of land has been in court since October 2014, and now a ruling will be delivered on the 30th day of August 2016.
The Lake Turkana Wind Power project did not wish to comment on the ongoing court case, but in their written defence to the court, they deny all allegations of unlawful land acquisition and lack of public consultation.
“We have consulted everyone”
In short, the defence rests on the fact that the National Land Commission confirmed the process on November 29, 2013 in accordance with the new constitution (2010), according to the consortium’s defense.
In an interview on November 9, 2015, for the purpose of this report, the Chief Operations Officer of the Lake Turkana Wind Power project, Nick Taylor, said: “When we first started, we went and spoke to every single community. That is documented, there is no doubt about it. We’ve come a long, long way from where we started. If you were to go to the field today and visit all those communities, you would find that the majority of the people in that area would be fully on board with the project”.
How to obtain free, prior and informed consent
Free implies no coercion, intimidation or manipulation.
Prior implies that consent has been sought sufficiently in advance of any decision point or commencement of activities and respect is shown to time requirements of indigenous consultation/consensus processes.
Informed implies that information provided covers (at least) the following aspects:
- The nature, size, pace, duration, reversibility and scope of the proposed project/activity;
- The rationale or purpose of the project/activity;
- The geographical areas that will be affected;
- A preliminary assessment of the likely economic, social, cultural and environmental impact, including potential risks and fair and equitable benefit sharing;
- Personnel likely to be involved in the execution of the proposed project/activity
- Procedures that the project or activity may entail.
Consent is the expected outcome of the consultation, participation and collective decision-making process by the local communities. It is the mutual agreement reached, documented and recognized by all parties. Consultation and participation are crucial components of a consent process and require time and an effective system for communicating among interest holders. Consultation should be undertaken in good faith, and local communities must be able to participate through their own freely chosen representatives and customary or other institutions. In general, communities would first consent to discuss the idea of the project that will affect their land, territories and resources. They would further participate in the consultation process leading to consent by contributing to the design of the project, including its implementation and monitoring mechanisms.
According to the consortium, their first public consultation was on 15th November, 2007. More than a year after, the consortium applied for the land lease, official records obtained by Danwatch show. In Gatab, Shadrack Lengayiap, a teacher who is also Samburu, is very pleased about the progress the wind power project has brought to the region. He clearly remembers the day he heard about the project. It was at a public meeting in July, 2009. That was also the day he learned that the land had already been given away – in 2007.
“I was concerned, because how and to whom was the land given? What were the terms of the lease? Could we as a community have gotten more out of this land lease agreement? But we decided not to make any problems,” he says.
According to the consortium, there have been extensive and meaningful public consultations on the project, including the land use and requirements. It is still unclear though, if the first consultations were prior to the land lease application from the consortium, November 20th, 2006.
The consultation process around how the land was given away is the main reason, why the Lake Turkana Wind Power project is not in compliance with IFC Performance Standards, says Rajiv Maher, PhD and former researcher at the Institute for Human Rights, who has done multiple human rights impact assessments in his career.
He is backed by Liz Alden Wily, international tenure specialist from Leiden School of Law:
“Given the level of disputation the project has generated, it is apparent that the consultative process has not met compulsory acquisition standards past or present,” Wily says.
Rajiv Maher elaborates: “Furthermore, their payments of EUR 113 per family for resettlement are tragically low, and disappointing considering the amounts of money being invested in the Lake Turkana Wind Power project. The project had – and still has – a golden opportunity to generate a genuine, positive, life-changing opportunity for the affected local communities. Unfortunately, based on Danwatch’s research, the Project’s impact on the local communities to date has been a net negative one”.
IFC Performance Standard 5 is not only about compensation, says Rasmus Hundsbæk, Postdoc in natural resources and development at The Danish Institute for International Studies (DIIS):
”It is even more importantly about the objective: ’To improve or restore the livelihoods and standards of living of displaced persons’. This is not necessarily an easy task, a lot can go wrong and the result completely depends on how well planned the process have been. It becomes even more difficult, when the process has been going on for almost a decade, such as in this case, and where plans have been changed along the way and many other dynamics have come up, which are beyond anyone’s control. Then, a lot can go wrong”.
What is IFAD?
The International Fund for Agricultural Development (IFAD), a specialized agency of the United Nations, was established as an international financial institution in 1977 as one of the major outcomes of the 1974 World Food Conference. The conference was organized in response to the food crises of the early 1970s that primarily affected the Sahelian countries of Africa. It resolved that “an International Fund for Agricultural Development should be established immediately to finance agricultural development projects primarily for food production in the developing countries.”
IFAD is dedicated to eradicating rural poverty in developing countries. Seventy-five per cent of the world’s poorest people – 1.4 billion men, women and children – live in rural areas and depend on agriculture and related activities for their livelihoods.
The projects compliance with international principles regarding the rights of indigenous peoples is also in question, says Africa Programme Coordinator for The International Work Group for Indigenous Affairs (IWGIA), Marianne Wiben Jensen.
”According to the international human rights principle of Free, Prior and Informed Consent (FPIC), the FPIC of affected communities should be sought right from the design stage, when we talk about projects that may affect land access and use rights of these communities. This is for instance the policy of UN organizations such as the International Fund for Agricultural Development (IFAD). It is thus not in accordance with FPIC principles to lease out community lands for investment purposes before any consultations with the affected communities have taken place.”
The consortium maintains that the project is in compliance with IFC Performance Standards:
“As a result of the involvement of Development Finance Institutions, the Environmental and Social (E&S) approach and process followed by LTWP was also subject to a comprehensive due diligence and assessment by a reputable international consulting company. An E&S action plan was also agreed between LTWP and its Lenders to ensure compliance with IFC Performance Standards”.