National Dialogue on the Rights of Indigenous Peoples and Extractive Industries, from 7 to 8 October 2019, Nairobi, Kenya

Final Communiqué

1. The African Commission on Human and Peoples’ Rights (the Commission) through its Working Group on Indigenous Populations/Communities in Africa (the Working Group) organized a National Dialogue on the Rights of Indigenous Peoples and Extractive Industries from 7 to 8 October 2019 in Nairobi, Kenya.
2. The National Dialogue was attended by 37 participants representing:

• The Working Group, represented by its Chairperson Commissioner Soyata Maiga and its members Hon. Commissioner Jamesina E. L. King, Honorable Commissioner Rémy Ngoy Lumbu, Dr Melakou Tegegn, Ms. Marianne Jensen, Dr Paul Kanyinke Sena, assisted by Ms. Aji Samate Mustapha and Ms. Anita Bagona;
• The Government of Kenya including representatives from the Office of the Deputy President, the Ministry of Energy and Petroleum;
• Kenya National Commission on Human Rights;
• Indigenous organizations and civil society organizations based in Kenya; and
• Extractive industries (Kenya Electricity Generation Company and Geothermal Development Company).

3. The opening ceremony was attended by high-ranking officials. Speeches were delivered by the representative of Indigenous communities, Mr. Daniel Kobei; the Representative of the Kenya National Commission on Human Rights, Commissioner Suzanne Chivusia, the Chairperson of the African Commission and Chairperson of the Working Group, Commissioner Soyata Maiga, and the Legal Advisor to the Office of the Deputy President, Dr. Korir Abraham Singoei.
4. The National Dialogue was aimed at launching, popularizing and widely disseminating the Study on Extractive Industries, Land Rights and Indigenous Populations/Communities Rights of the Working Group; engaging with relevant stakeholders particularly state and non-state entities on the findings of the Study; and finding a common ground and deliberate on ways and means of creating mechanisms for the implementation of the recommendations made by the Study;
5. Several themes were extensively discussed, including:

• The main findings, conclusions and recommendations of the Study;
• The perspectives of the Indigenous Peoples, National Human Rights Institutions, NGOs and academia’s on the findings of the report relating to the situation in Kenya; and
• The principle of Free, Prior and Informed Consent, and international and regional mechanisms, safeguards and voluntary guidelines. 

6. Presentations were followed by constructive dialogues on the findings, conclusions and recommendations of the Study.
7. Working groups were formed to make recommendations on ways, means and mechanisms for the implementation of the Study’s Recommendations in Kenya; to identify the role of each stakeholder and to suggest ways to strengthen the cooperation with the Working Group and the Commission in implementing and following up of the Study’s Recommendations.
8. The following recommendations were made at the conclusion of the National Dialogue:

A. To the Government of Kenya:

• Ratify the ILO Convention 169 and endorse and domesticate the UN Declaration on the Rights for Indigenous Peoples (UNDRIP);
• Establish an office on indigenous peoples’ affairs under the Office of the President to advise on indigenous peoples’ issues
• The Ministry of Justice and the Judiciary to facilitate access to justice to indigenous communities at the local level through the establishment of alternative dispute resolution processes;
• Observe and implement the ruling on the Ogiek case by the African Court on Human and Peoples’ Rights of 26 May 2017, the implementation must respect the principle of Free, Prior and Informed Consent (FPIC) and fast-track details of the judgement;
• Ensure that the current Mau evictions should respect the ancestral lands of the Ogiek people of Mau and their legitimate claim of ownership of the Mau complex, with due respect to the Court judgement;
• Reconstitute the failed taskforce for the implementation of the Commission’s Decision on the Endorois case in consultation with the  Endorois Welfare Council;
• Establish a National Task Force on Extractive Industries and indigenous peoples’ rights with clear terms of reference to ensure follow up and implementation of the study’s recommendations. The Task Force should be comprised of stakeholders including relevant Government Officials, the Kenya National Human Rights Commission, indigenous peoples, civil society organizations, and extractive industries representatives;
• Together with extractive industries develop and implement national public participation models for the sector taking into account all citizens of the country including full participation of Indigenous Populations;
• Support indigenous peoples’  engagement and full participation to explore the possibility of indigenous peoples  participating in the extractive industries in compliance with the principle of FPIC;
• Operationalize the aspects of traditional knowledge/practices of indigenous peoples  in the climate change laws and policies, the Nagoya Protocol and Convention of Biological Diversity (CBD),  strategies and action plan in Kenya;
• Recognize the life style of the indigenous populations, especially in hunting and pastoralism;
• Facilitate and support indigenous led enterprises in the extractive sector;
• Ensure that in addition to an environmental assessment, a participatory social, cultural, economic and ecological impact assessment is conducted prior to the implementation of any extractive activities within indigenous community lands;
• Ensure timely and full disclosure of all project information to indigenous communities by government, investors and financial institutions;
• Support indigenous peoples’ engagement and free participation to explore the possibility of whether indigenous populations could participate on their own in the extractive industry sector;
• Support efforts of indigenous peoples to develop economic alternatives to extractive industries.

B. To the Kenya National Commission on Human Rights:

• Build capacity of indigenous peoples to be fully empowered to claim their rights and fulfill their responsibilities;
• Build capacity of state actors, corporate sectors, civil society as well as the media on the rights and obligations in respect of indigenous peoples;
• In collaboration with other stakeholders conduct a public inquiry and collect data on the current situation of indigenous peoples in Kenya, ;
• In collaboration with other stakeholders, develop and publish a situational report on indigenous peoples  every two years;
• Establish a tribunal to address human rights violations of indigenous  communities ;
• Develop a policy guide on indigenous peoples  for Ministry departments and agencies;
• Ensure that the” National Guidelines for Free, Prior and Informed Consent (FPIC), Kenya” (developed by the Ministry of Environment, Natural Ressources and Regional Development Authorities in 2016) will be adopted and applied by all government institutions both at the National and County levels whenever there is a project taking place on Indigenous Peoples’ territories;
• Lead advocacy efforts for the return of the administration of Community Lands to the National Land Commission;
• Partner with the African Commission to popularize and disseminate the Study’s recommendations.

C. To Civil Society Organizations:

• Popularize and widely disseminate the study’s findings and recommendations to all including Government Institutions and indigenous peoples ;
• Popularize and widely disseminate international, regional and national laws and standards relevant to the rights of indigenous populations, in particular the UNDRIP  and ILO Convention 169 ;
• Lobby for the inclusion of recognition of indigenous peoples’ rights to their land and natural resources in national laws, policies and processes, including implementation of the  recommendations of the  Study;
• Ensure that there is adequate access to justice for indigenous peoples  and  train them on those issues;
• Lobby for inclusion of FPIC in the Constitution to protect the rights of indigenous peoples;
• Use the leadership and guidance of indigenous populations in strengthening their relationship with CSOs;
• Lobby the relevant state and government institutions to expedite the process of ratification of ILO Convention 169 and domestication of the UNDRIP;
• Advocate for the institutionalization of participatory mapping of indigenous lands and territories , customs, norms  and traditional practices;
• Support and strengthen indigenous peoples’ organizational platforms;
• Train indigenous peoples’ organizations and civil society organizations on human rights, governance, advocacy and entrepreneurship;
• Support indigenous peoples to take the lead and build their institutional capacity to be able to champion their rights.

D. To Business Enterprises:

• Ensure adherence with the UN Guiding Principles on Business and Human Rights frameworks (2008); in particular, ensure that indigenous peoples’ rights are protected and respected and remedies availed for violations;
• Report to the Inspectorate of State Corporation, State Corporation Advisory Committee and Presidential Delivery Units on how State owned enterprises have secured the human rights  of indigenous peoples in Extractive related activities, especially on oil and gas;
• Comply with international laws such as of Free, Prior and Informed Consent in the development and implementation of all extractive industry projects and activities taking place within  indigenous peoples’ areas so that the rights of indigenous peoples  are protected and promoted;
• Apply a Human Rights Based Approach to development by for instance widely consulting indigenous peoples before coming up with new projects;
• Recognize the ownership rights of indigenous peoples of their lands and territories.

E: To Indigenous Communities:

• Take the lead in identifying the needs of indigenous peoples in Kenya;
• Create a national multi-stakeholder working group to ensure follow up and implementation of the study’s recommendations. The working group should be composed of representatives of government, and local authorities, the National Commission for Human Rights, all national indigenous populations’ network, civil society organizations, and representatives of the extractive industry sector;
• Create a national network and a Social movement to push for the implementation of the Study’s Recommendations  as well as the promotion and protection of their land rights from annexation and dispossession;
• Utilize available remedies that include Courts and complaint mechanisms at the national, regional and international levels and work towards formation of an alternative dispute resolution mechanism;
• Push for that indigenous traditional governance systems should be recognized and play a complimentary role with the existing government laws and policies; 
• Promote the use of indigenous knowledge and customary laws in land and forest resources management and play a complimentary role with the Kenya Forest Services and the National Land Commission in accordance with the Community Land Act of 2016;
• Operationalize the Traditional Knowledge and Cultural Expressions Act of 2016 to document customary laws and practices;
• Strengthen and build the capacity of the indigenous peoples’  institutions; including coming up with business plans, developing companies to negotiate for concessions for mining purposes among other businesses, especially those in their lands and territories.

Done in Nairobi, Kenya, 8 October 2019