Balancing participation and consent: evaluating the rights of indigenous communities in Kenya regarding development projects by extractive industries on community lands

Abstract

The Kenyan constitution recognizes indigenous communities as integral parts of marginalized groups, granting them entitlement to participation in governance issues and affirmative action. This study examines the current legal framework concerning the participation, consultation, and consent of indigenous communities. It reveals a deficiency in legislation and procedural support for indigenous community involvement, compounded by significant state interference during implementation. Employing qualitative methods, the research explores optimal practices for involving and consulting indigenous communities in Kenya. It concludes that prioritizing a process guided by the principle of free prior and informed consent effectively safeguards the rights of indigenous communities, aligning with international instruments and Kenya's constitutional mandate to protect marginalized groups. The study identifies key principles inherent in the free prior and informed consent approach, which can inform and enhance Kenyan legal frameworks and jurisprudence, as demonstrated within the study's findings.