The Government has a responsibility to disclose Turkana oil deals

One of the most important recent events in Kenya was the flagging off of the country’s maiden crude oil export to Malaysia on 26th August 2019 at a cost of $12 million (Kshs. 1.2 billion). The ceremony, which was presided over by President Uhuru Kenyatta, was a culmination of a year’s accumulation of crude oil at the Kenya Petroleum Refineries Limited in Mombasa. The President had earlier announced that Kenya had struck a deal with an oil exporter with the Petroleum Principal Secretary, Andrew Kamau, revealing that a Chinese State –owned petroleum multinational ChemChina (UK) Ltd had won the bid to lift the Turkana oil, in what marks Kenya’s entry into the league of oil exporting countries. Tullow Oil, the mining company in charge of the Turkana Project, estimates that Kenya’s fields in Turkana hold up to 560 million barrels of oil and expects to produce up to 100,000 barrels per day from 2022. Whereas it is still too early for any meaningful celebration, exportation of Turkana oil is a significant milestone with the potential of transforming the socio-economic status of the country. Every stakeholder is seeking to get a pie of the Turkana oil.

However, one of the most contentious issues concerning the oil exploration and exportation has been the disclosure of information regarding Turkana oil. The Ministry of Petroleum and Mining had stated that the Government would not publish the terms of engagement with Tullow Oil and its joint venture partners in the Project. This seemed to have been a response to the accusation by the Kenya Civil Society Platform on Oil that the Government was violating the Constitution and breeding mistrust by concealing details of the Project. One thing that is clear from the foregoing is that the Government is not willing to publish the details of the Project, notwithstanding the constitutional and statutory obligations on access to information.

It is undoubtedly clear that the position of the Government on this issue is untenable. The Constitution and the Access to Information Act, 2016 explicitly requires details of such projects to be disclosed. Indeed, section 2 of the Act lists the exploitation of natural resources as one of the areas of disclosure of information due to public interest in relation to the protection of human rights, environment or exposure to corruption and illegal acts. Accordingly, private entities involved in the extraction of natural resources, such as Tullow Oil, are required to disclosure any information on such extraction.

In light of the above, extractive contracts between the Government and Tullow Company on this Project should not be concealed or crafted with confidentiality clauses to restrict access to information by citizens. Such action would expressly be illegal. In my considered view, the Government should proactively disclosure information on such contracts, including the benefit sharing agreements, environmental impact assessment and the mineral agreements entered into with the Company in accordance with the Mineral Act, 2016. This will be in line with the Government’s commitment under the Extractive Industries Transparency Initiative. It is worthwhile to note that whereas the Petroleum Act, 2019 provides for profit sharing between the National Government (75 percent), County Government (20 percent) and the local community (five percent), the amount to be shared will only be known after the cumulative cost of the Early Oil Pilot Scheme is known and a formula agreed on how the cost will be recovered. The lack of a clear revenue sharing with the local community may complicate the smooth progress of the Project which has experienced interruptions and unrest in the past.

In the present case, the National Government, Turkana County Government and the private companies involved in the Project have the responsibility of publishing information to the public. They also have the responsibility of ensuring sustainable exploitation, utilisation, management and conservation of the resource. Further, they have the responsibility of ensuring environmental sustainability, and protection of the rights of citizens, especially the local communities. Such action will enhance transparency and accountability, and public participation in the management of Turkana Oil Project. In fact, ownership by the local communities will be assured thereby leading to sustainability and benefits to all stakeholders. In a nutshell, the Government should promote access to information regarding the Project to prevent the ‘oil curse’ which has bedeviled many countries globally, especially in Africa.