Parliament must enact robust public participation regulations to curb government officials from unilaterally committing Kenya to dubious treaties like the Energy Charter Treaty (ECT). Officials appending their signatures to such agreements should be held personally liable to safeguard Kenya’s sovereignty, environment, and public resources.
On September 20, 2024, ActionAid International Kenya (AAIK) sensitized over 50 advocates of the High Court of Kenya, alongside lawyers from various organizations, on the controversial ECT. This treaty, signed in 2017 by former Cabinet Secretary for Energy Alfred Keter, aligns Kenya as an interested member of a pro-fossil fuel agreement, posing risks to the environment and the economy. If ratified, the ECT could derail Kenya’s transition from fossil fuels to sustainable energy sources.
Caroline Khasoa, an advocate of the High Court and convener of LECC BARAZA, emphasized the need for stringent accountability measures.
“The best way to hold someone accountable is to establish minimum standard testing procedures. When things go wrong, Kenyans must have grounds to demand answers. Without this, resource plundering will continue,” she said.
The advocates called for amendments to the Government Contracts Act Chapter 25 (Revised Edition 2022 [1956]), specifically Section Six, which absolves public officers from personal liability when acting on behalf of the government. This provision contradicts the Treaty Ratification Act, 2012, which criminalizes treaty ratification without parliamentary approval. Public officers must align with Kenya’s constitutional and legal frameworks to avoid entering damaging agreements.
ActionAid is spearheading efforts to educate stakeholders and the public on treaties like the ECT. Key advocacy targets include judges, magistrates, members of Parliament, civil society organizations, and executives in the Department of International Treaties under the Attorney General’s Office. AAIK is collaborating with LECC Baraza and Kituo Cha Sheria to amplify these efforts. According to Susan Otieno, Executive Director of AAIK, it is vital to enlist technical expertise to advocate for Kenya’s withdrawal from the ECT.
“When we initiated conversations on the ECT, we were warned to avoid the subject. But we remain resolute. We can’t tackle this alone, and we are enlisting technical partners to strengthen our efforts,” she said.
Susan Otieno highlighted the ECT’s origins as a far-reaching legal framework aimed at regulating energy trade, transit, investment, and dispute resolution. While the EU has collectively exited the ECT, African countries lack such cohesion, leaving them vulnerable to exploitation.
Wycliffe Nyakina, an activist and constitutional litigation expert, stressed the importance of regional integration:
“Kenya and Africa must set the agenda. Treaties dictated by the Global North prioritize their interests, not ours. We must establish a legal environment that aligns with our laws and policies.”
The Law Society of Kenya – Nairobi Branch pledged to provide legal expertise to prevent Kenya from advancing to full membership in the ECT. Advocacy efforts must continue to ensure Kenya’s sovereignty, sustainable development, and alignment with its constitutional mandates.
By uniting regional and local stakeholders, Kenya can reject treaties that undermine its economic and environmental goals, while fostering partnerships that prioritize the interests of its citizens.