The International Lawyers Project (ILP) is working to provide legal capacity building, advice and support to Maasai communities who have been negatively impacted by green energy investments, to help them participate as more equal partners in negotiations with investors.
The promotion of green energy investments is a way of achieving Goal 7 of the 2030 Agenda on Sustainable Development Goals, which focuses on ensuring access to affordable, reliable, and sustainable and modern energy for all. However, in line with the Paris Agreement which acknowledges the recognition and protection of human rights, countries need to carry out their climate change policies in a sustainable manner that takes into consideration the impact of these green energy investments, including one’s obligation to respect the rights of indigenous peoples to their land. In fact, the UN Declaration on the Rights of Indigenous Peoples prohibits resource extraction, development, or other investment projects, on native land without the free, prior and informed consent of the indigenous communities. This requirement is not disregarded simply because the project is a form of renewable energy. Careful thought needs to be given to discussion, planning and negotiation when permitting companies to develop green energy projects in areas inhabited by poorer communities. Although green energy projects can offer the benefits of a clean and sustainable energy, it comes at a high price if it results in the displacement of communities from their lands and disruption of their traditions and livelihoods.
The Maasai community in the Okaria area are facing a present and ongoing threat to the security of tenure over their land as well as threats in respect of housing such as forced and illegal convictions, to their pastoralist livelihoods due to land disputes, and therefore their rights as an indigenous community more broadly. The Olkaria area is located in the Rift Valley which has estimated potential for the production of geothermal energy, of more than 2000 Megawatts (MW) per hour, enough to power Cape Town, South Africa. The Kenyan government and private investors are therefore increasingly seeking to accelerate the development of several exploratory geothermal wells that have been found in the Olkaria area. This presents an increased risk of conflict with the local Masaai communities who feel unable to legally defend their rights.
Members of the Okaria Maasai Community contacted International Lawyers Project to seek support for increasing their community’s awareness of their legal rights, as well as the duties and obligations owed to them by the corporations, local as well as national government officials.The community was concerned that they do not feel able to negotiate on an equal basis with private investors in large companies that employ experienced corporate lawyers. Community leaders have argued that their position in negotiations is weakened by the uncertainty of their land ownership. The community’s rights to the land are not widely recognised in law, hampered by a lack of clarity about land delineations amongst the community, a fact that is made more complex because they live within the boundaries of a national park. This complexity stems from the legal recognition of the national park in 1984, but not the Masaai lands within these borders. Additionally, women in the community have highlighted that they are often left out of conversations surrounding land rights, including negotiations for resettlement and compensation. This has led to outcomes that are not representative of the interests and concerns of all community members.
ILP has recruited expert lawyers, experienced in complex investor negotiations to represent and advise the community, who can impart practical legal knowledge and strategy that will facilitate wider engagement in development decisions. This could include supporting communities to negotiate with investors for fair compensation and the avoidance of adverse social and environmental impacts, training community members to monitor and report on poor corporate or government behaviour, and supporting advocacy for stronger legal protections. In doing so, we seek to level the playing field by allowing all community members to access high level legal expertise and advice similar to that which corporate investors benefit from. In the long term, we hope to support the Olkaria communities to understand and advocate for their own rights even in the absence of direct support from organisations and pro bono lawyers.
These communities’ goal is to increase their ability to defend their rights, so they are not forced to make unfavourable concessions or disadvantageous contracts in the future, when multinational enterprises increasingly work to develop Kenya’s natural resources.
Furthermore, women in the community hope that by accessing legal education, advice and support they can ensure that any deals that are made are beneficial for the entire community. For example, the constitution of Kenya (2010) includes a provision stipulating that the sale of land must involve the family, including women. If there is evidence that a family member sold land without consulting and involving the family, this can be brought before the courts. In this case, a legal education will enable women to exercise their rights and defend their land.
This project was funded with UK aid from the UK Government’s Small Charities Challenge Fund. SCCF grants are vital for NGOs such as International Lawyers Project (ILP) as without this financial support we would be unable to provide the legal assistance needed by marginalised groups to protect their rights.
ILP is committed to supporting the UN Sustainable Development Goals, especially goals 5 (gender equality), 7 (affordable and clean energy), 15 (life on land), 16 (peace, justice and strong institutions) and 17 (strengthening global partnerships). The Goals are designed to make the world fairer, safer and more prosperous.
By Christopher Watkins (ILP Legal Fellow), Diana Mochoge (ILP Africa Project Coordinator) and Maria Cristina Mundin (Senior Projects Officer)
In the photo above, one of the community leaders was arrested and taken to the Department of criminal Investigations (CID) sub county office in Naivasha. The charges brought against him were: serious harm of a police officer and cause of disturbance in Mai-Mahiu Narok road on 21/3/20. The community members came along to protest the arrest as illegal and a form of intimidation by the security forces.
Community members where the demolitions happened. Some of the homes were demolished in Narok Naivasha sub county Kenya.
In this photo, community members blocked the Mai-Mahiu Narok road to demonstrate against the ongoing demolitions in their villages.
In the above photo, a bulldozer brings down buildings in Narok area Naivasha sub county as community members look on.
A bulldozer bringing down a home in one of the villages in Naivasha sub county to prepare for geothermal projects on the land.
