Mediation: a means of resolution of grievances faced by the Turkana community as a result of upstream oil activities

Abstract

Exploitation of natural resources especially in developing nations leads to a rise of grievances with respect to land and sharing of benefits accruing from the natural resources. This has been seen with the exploration of the oil resource in Turkana where grievances have arisen among the various stakeholders being both levels of the Kenyan government, community and the International investor. The grievances revolve around lack of public participation in exploration activities being carried out by the investors, compulsory acquisition of land resulting in the loss of communal land, access to employment opportunities, revenue sharing, beneficial use of natural resources and lack of transparency due to poor information sharing among others. Access to justice through litigation has been hindered by disadvantages of formal dispute resolution processes which include high costs for instituting a suit, codified complex procedures, low educational levels among members of a community and lack of legal knowledge. These issues can be resolved by the use of mediation. The problem that this thesis seeks to address is lack of timely resolution of grievances and issues that arise and have arisen as a result of upstream oil activities in Kenya. This research has adopted a doctrinal research methodology and shall use an interpretive approach to data, texts and studies within the context of grievances that have arisen and examine the role that mediation can take in resolving such grievances. The research findings have indicated that mediation as a grievance resolution mechanism can play a role in solving grievances arising as a result of the extractive industry, that there are statutes that provide for the use of mediation in Kenya and Internationally and mediation can save time and resources in resolution of grievances by enabling parties such as an IOC or Government to obtain the social license to operate. The research further concludes that the proper use of mediation as one of the ADR mechanisms will resolve any animosity between the parties involved in the extractive industry such as the government, International investors and local communities living in the area where a resource is being extracted and ensure that the people benefit from the resource in form of revenues, jobs and infrastructure such as schools and hospitals.