Local Content Bill forum was public participation done right

As I sit on a rock at the shore of Lake Victoria the gentle ripples mess up my dry legs.

I’m back in paradise on earth here in Garuga, a small peninsula protruding deep inside the Ugandan waters of Lake Victoria, just a few kilometres from Entebbe.

I dip my feet casually into the dark waters, just testing them. The vast expanse of sweet water stretches in front of me to the horizon.

Again, I catch sight of the sun’s rays as they strike the lake and dance off on the wavelets, creating a glittering effect that is absolutely beautiful to behold.

The calmness is only interrupted by the sounds of fishermen struggling with their nets, some ibises shouting their songs, or some distant engine-propelled boats from the more entrepreneurial fishermen.  

Our humanity is painfully aware of how short life is. We rush, we get anxious and we want everything to be done, to be achieved here and now.

Meanwhile, nature seems to stand still, observing us and reminding us of eternity and the importance of reflection; not to lose sight of the bigger picture.

Behind me everything is still a little rural, beautifully rural. Further behind me, in Kenya, I have left the dearest things in life; the fun, the action, worries and concerns, and the people I love and care for.

I do not intend to abandon them. I just needed to breathe in and face new and old challenges with renewed energies, greater joy and a positive spirit that is often in danger of suffocation from a lack of perspective, that lack of reflection or ignorance of why we do what we do.

Reflection is very necessary, especially nowadays, when we are constantly bombarded with an overload of information, antisocial social media, big data with small analysis, quick news with slow thinking.

Our Constitution took specific measures to prevent this sort of superficiality in Parliament’s legislating task. The idea was to give the public the ability to be involved in law making. It was called public participation.

PRECOOKED BILLS

Sadly, most "public participation" forums have become a farce where precooked bills are showcased to the same people in the same venues, usually KICC, with little notice.

No experts are invited or meaningful discussion is held; it is the pastor preaching to the choir and we call it public participation.

The courts have dealt with this matter and the discussion is still on. What is the nature and extent of public participation? When can we say there has really been public participation? 

Universities in general and law schools in particular have been largely responsible for this public participation failure, for this lack of reflection on the laws we are passing.

We have remained true ivory towers, watching new legislation pass by as water under the bridge, with little or no input from academe. Last Thursday we decided to put an end to this.

With the agreement of the Senate, the launch of the Local Content Bill was held at Strathmore University. A wide discussion with civil society, corporations, local communities, experts and other stakeholders was organised and broadcast live.

Almost 500 people gathered to listen to the discussion. The Local Content Bill was drafted under the watchful eyes of the Senate’s Standing Committee on Energy, chaired by Gideon Moi. Other members included senators Dan Mwanzo, Kiraitu Murungi , Abu Chiaba , David Musila, Elizabeth Ongoro, Kimani Wamatangi , John Munyes, and Kipchumba Murkomen.

According to Senator Moi, the Bill introduces a set of rules and guidelines into Kenya’s oil and gas industry as a means of protecting and facilitating growth locally. It requires a minimum percentage, by value, of goods and services to be provided from Kenyan sources.

The Bill will ensure the local oil and gas industry is protected and receives an equal platform in competing with larger multinational firms. This legislation was actually inspired by other similar laws adopted across the world in such countries as Norway, Trinidad and Tobago, Brazil, Kazakhstan, Indonesia and Nigeria.

ALL OR NOTHING

As Senator Moi said, the Bill will go a long way towards ensuring Kenyans reap the full rewards of their own resources, while still maintaining the key business elements that make the investment attractive to investors.

It will entrench local content in every aspect of the extractive industry value chain.

Every mining project has three huge stakeholders, who all expect a hundredfold return in no time: the investor or corporation extracting the resource, the government (both national and county), and the community.

The matter is complex and expectations are sumptuous. If business is too complicated or risky the investor will run away. If returns are too good for the investor the community will feel cheated.

If the national government takes it all and leaves nothing for the county, the project will be sabotaged. If the county takes it all and nothing goes to the national government, unfairness within our devolution chain shall result.

Local content is based on a principle of equity that seeks to strike a delicate balance between the expectations of the main stakeholders.

Investors could manipulate the community to choose between “all or nothing”. Usually, they get nothing, and continue living poor lives on top of their resources.

Dealing with governments is also complex. We now have two levels of government, national and county, that may impose excessive taxes, making business unviable and shattering the community’s development dreams.

After all, no country decided which rich minerals they wanted below their soil. They just found themselves sitting on a God-given gift, which may turn into a curse if badly administered.

SWEATING PANELLISTS

Finally, in most cases extractive industry investors are the ruthless profit maximization-type investor.

The risks are too many, particularly in unstable societies, so they aim at making the most money, in the shortest possible time, with the least required effort, at the expense of the community and the environment.

The Local Content Bill is expected to facilitate the development of local economies through the creation of employment opportunities and by ensuring the procurement of goods and services that are produced locally.

This approach will stimulate local industrial development, capacity building and increase the local expertise to meet international standards in the supply of goods and services.

The forum was amazing, and the discussion rich and engaging. The panel was made up of politicians, investors, academia, community representatives and experts on oil and gas.

The questions made the panellists perspire during their time on air. It was truly what the Constitution had in mind when it required public participation.  

One of the greatest problems of our generation is the lack of reflection. We have neither time nor the space to reflect. We go from noisy houses to noisy streets. The world is moving fast and we do not listen to nature unless it calls us.

We hardly listen to each other. Yet when it comes to legislation, listening is the only way to make outcomes sustainable.

Dr Franceschi is the dean of Strathmore Law School. [email protected]; Twitter: @lgfranceschi