Release information on all extractives

Petroleum Secretary John Munyes was recently quoted as saying that a deal the government had signed with Tullow Oil for sourcing finances internationally would be kept secret. His justification was that this would be in line with keeping commercial confidentiality and Kenya’s official secrets.

One can only hope that the minister was misquoted. If he was not, then he is completely mistaken. In 2019, Kenya lives under a new constitutional dispensation. The 2010 Constitution makes three fundamental promises that negate the statements by Mr Munyes.

First, oil, whose exploitation is the basis of the relationship between Tullow Oil and the Government of Kenya and the numerous agreements whose disclosure is the subject of the contestations is classified as part of public land.

Public land is a resource that belongs to all the people of Kenya. Oil as part of public land is owned by the people of Kenya but is held by the national government as a trustee on behalf of the people. The government is a trustee and not an owner. For something they do not own, it is interesting to see a minister speak as if the property is private property.

Secondly, the Right to Information is constitutionally guaranteed. Any information that is held by government institutions and other public bodies has to be availed to members of the public whenever they seek it. Information is necessary for the functioning of a democracy such as Kenya’s.

To speak as if it is a discretionary power of any government agency on whether to make any publicly held information available to the public is to live in the pre-2010 era. This is demonstrated by reference to official secrets, a policy that saw any government held information as part of official secrets that cannot be made available to the public.

In addition, the Constitution affirms that Kenya is an open and democratic society. An open society is one where there is free flow of information. This requires that citizens are given sufficient information to enable them to participate in the governance of their country from an informed position. Any statements that seems to denote this constitutional promise is unconstitutional.

Accessing information is important for the extractive industry. The sector has for long been mired in secrecy and its consequential impact which is corruption. While exploitation of oil and minerals generates a lot of revenue the sector is mainly associated with what is defined as the Dutch disease.

The revenue results in more poverty as opposed to prosperity. One of the negative issues associated with the sector is corruption. Corruption and secrecy operate as Siamese twins. When you lack information on the content of any agreement in the sector, you cannot assess whether the deal is beneficial to the people of Kenya or whether it is lopsided only benefiting the private investor and the individuals involved in its negotiations. To fight corruption requires that there is compromise on disclosure of information

The need for providing information in the sector, is not just a national requirement. Internationally, there is a global process called the Extractive Industry Transparency Initiative (EITI). It is a global standard whose rationale is disclosure of all information along the extractive value chain from extraction to when the benefits from the sector reach the citizens. It, in this way seeks to secure open and accountable governance of the sector. EITI standards implore countries to adhere to its provisions and make information concerning exploitation and utilization of a country’s extractive resources to be made publicly available. Kenya as a member of the global community should seek to meet the requirements of EITI

When the country initially discovered oil, there was a lot of positivity with the hope that the fortunes of the residents of Turkana and the larger country would be changed by the discoveries. Since then there have been numerous challenges. It is therefore important that we avoid painting a rosy picture. Instead we have to take the approach of realism. That requires candour and objectivity.