Kenyan Constitution

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The Petroleum Act states that all petroleum is vested in the government. This is consistent with the 2010 constitution, which states that all minerals and mineral oils shall be vested in the national government.[1]

Publication of contracts

According to a study by Sustainable Integrity, the constitution stands in conflict with the principle of contract confidentiality implied in the model contract because it requires the ratification of all future concession agreements by parliament and thereby the publication of contracts,. [2] [3]

However, according to Freshfields Bruckhaus Deringer current transitional provisions mean that the requirement for parliamentary ratifications does not come into effect until 28 August 2015.[4] Moreover, the requirement will apply only to future transactions, and existing contracts will not be affected.[5]

In general, however, the model contract does also not necessarily imply contract confidentiality. This is, firstly, because clause 37.1 of the model contract states that "all the information which the contractor may supply to the Government under this contract shall be supplied at the expense of the contractor and the Government shall keep that information confidential"[6]. Yet, not all information provided in a contract necessarily belongs to the contractor.[7] Secondly, even if the contract fell under the category of information supplied by the contractor, clause 37.2 of the model contract, allows the Minister to use contract information "for the purpose of preparing and publishing reports and returns required by law".[8]

Refering to Kenya's constitution, an International Monetary Fund (IMF) team asked the Kenyan government in July 2013 to release details of a number of deals it has signed with oil exploration and mining firms.[9] According to officials on the IMF team, the government, denied them access to the contracts. [10]

References

  1. Conditions for Oil and Gas Explorations“, National Oil Company of Kenya, 15 October 2013.
  2. Kenya Petroleum Sector Scoping Study”. Sustainable Integrity GmbH, April 2013.
  3. The Constitution of Kenya”. World Intellectual Property Organization, 28 August 2010.
  4. Kenya Kaplan & Stratton”. Freshfields Bruckhaus Deringer, retrieved 21 October 2013.
  5. Kenya Kaplan & Stratton”. Freshfields Bruckhaus Deringer, retrieved 21 October 2013.
  6. Model Production Sharing”. Republic of Kenya, retrieved on 20 November 2013.
  7. So what exactly stops Kenya publishing its contracts?”. OpenOil, 5 August 2013.
  8. Model Production Sharing”. Republic of Kenya, retrieved on 20 November 2013.
  9. Kenya denies IMF access to secret mining agreements”. Business Daily, 21 July 2013.
  10. Kenya denies IMF access to secret mining agreements”. Business Daily, 21 July 2013.