The Power to Say ‘No’: How FPIC Empowers Indigenous Communities
- International Lawyers Project
- 1 day ago
- 3 min read
Updated: 15 hours ago
By Anna Foulks, Legal Fellow
Free, Prior and Informed Consent (FPIC) is a procedural safeguard recognised by the UN Declaration on the Rights of Indigenous Peoples and incorporated into other international standards and jurisprudence that protect indigenous communities’ rights over their land, territories and resources. On 14 August 2025, the International Lawyers Project (ILP) and East African Wild Life Society (EAWLS) organised a training on public participation and FPIC for indigenous and local communities. The training provided an overview of relevant Kenyan legal provisions on public participation and dissected the principle of FPIC and its proper implementation. It also presented strategies that communities can use to meaningfully engage with relevant stakeholders. Participants shared practical case studies and examined how FPIC already plays a role in their lived experiences and how this can be better supported.
Free, Prior and Informed Consent and its Legal Foundations
Eliud Kipchogue, a Kenyan citizen and the only man ever to run a marathon in under 2 hours, often speaks of “Vitamin N” — the power to say no. When extractive industries’ appetite encroaches on indigenous lands for commercial gain or otherwise, the intuition is that those negatively affected cannot hope to resist outside attempts to coerce, intimidate, manipulate or pressure them into signing away their rights.
Enter Vitamin N, which in this context is the FPIC consultation process. Backed by the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), the Convention on Biological Diversity, and the International Labour Organisation Convention 169, FPIC includes the principle that indigenous peoples must be adequately informed about products in a timely and appropriate manner and given the opportunity to say “no” to threatening projects before the operations begin, and as they continue.
Training on Participation and FPIC in Development Process
ILP partnered with EAWLS to conduct a virtual training on participation and FPIC in development process. The training was attended by around 30 representatives of different indigenous and local communities. EAWLS mobilised participants and gathered relevant feedback, while Soinei Parseina, Managing Partner of Parseina Soinei & Co. Advocates, and Lucy Claridge, Executive Director of ILP, delivered two presentations on the legal theories and practice of public participation under Kenyan laws and FPIC and its implementation. Through the training, participants were introduced to the fundamentals of FPIC and how it should be implemented in development projects.
Parseina emphasised how the Kenyan Constitution and other relevant legislation provides for public participation, and made it very clear that in Kenya, failure to practice public participation is a constitutional violation, as reflected in Articles 10, 63 and 69(1). For example, the right to participate is reflected in the County Governments Act (Section 87), in relation to community engagement in planning, and public participation is a requirement of a county’s governance and decision-making processes. Furthermore, Parseina discussed the international instruments that Kenya has ratified in pursuance of indigenous rights, notably including the African Charter on Human and Peoples’ Rights, the Maputo Protocol to the African Charter on Human and Peoples’ Rights, and the Convention for Safeguarding of the Intangible Cultural Heritage, which obliges state bodies to ensure the ‘widest possible participation of communities, groups, and, where appropriate, individuals that create, maintain and transmit such heritage, and to involve them actively in its management’ (Article 15).
Claridge’s presentation built upon Parseina’s foundation. She explained how FPIC is a procedural safeguard available only to indigenous peoples, and discussed the four factors in Special Rapporteur, Martinez Cobo’s, widely-cited working definition of indigenous peoples. She then explained the implications of key concepts such as ‘Free’, ‘Prior’, ‘Informed’, and ‘Consent’ in context. A riveting discussion followed, wherein participants submitted questions ranging from appropriate procedures to ensure consent is ‘informed’ to what the threshold is for sufficient public participation.
The Way Forward
FPIC is a crucial tool that can level the bargaining power between governments/corporations and indigenous communities. FPIC must now be integrated into development projects on indigenous lands to ensure the land and other related rights of indigenous communities are protected, recognised and respected.
ILP and EAWLS are looking forward to collaborating further in the coming months to deliver follow-up training designed based on feedback from the first session. ILP considers capacity building on public participation and FPIC vital to advancing its work under its Environmental and Sustainable Development programme.