Could carbon projects be like that puffy mandazi that you bite into and discover that it was a pocket of air? This is arguably the case, for some communities in Kenya whose high hopes for carbon credits have been dashed.
Various news reports indicate that though lauded for its potential to mitigate climate change, carbon trading in Kenya has played a role in perpetuating inequalities and undermining local communities’ interests.
Concerns abound over alleged land grabbing, inadequate sharing of benefits, and the prioritisation of economic gains over the social well-being of communities.
Allegations of failure to obtain informed consent from local communities, interference with a community’s way of living, and restricting community access to ancestral land has led carbon offset certifiers to suspend the issuance of carbon credits by certain carbon projects.
And then earlier this year, the Environment and Land Court in Isiolo, Kenya, halted conservancy operations at Cherab community conservancy and the Bulesa Biliqo community conservancy noted to be operating illegally, having been established without consultation of Kenyan regulatory authorities and the involvement of the community. There has also been international scrutiny over eviction claims of Kenyan indigenous communities from their ancestral lands for carbon projects.
Under the Paris Agreement that Kenya ratified in 2016, climate change adaptation actions such as carbon offsetting schemes are required to promote the rights of indigenous peoples and local communities, all the while being guided by the communities’ traditional and indigenous knowledge.
The amendments to the Climate Change Act, 2016 and the Climate Change (Carbon Markets) Regulations, 2024, mirror the stipulations in the Paris Agreement.
The Act introduces community development agreements (CDAs) intended to outline the obligations between the project proponents and the community where a carbon project is undertaken on community or public land.
The CDA process provides a mechanism for advance consultations with the affected communities to obtain their free, prior and informed consent to the project.
The regulations provide for the establishment of CDA committees which comprise of, among others, representatives of the village elders, youth, persons with disability, marginalised groups, ethnic and other minorities as elected by the community. The CDA committees have the added pivotal role of ensuring compliance with CDA terms and settling project disputes.
Furthermore, the regulations require carbon projects to adhere to social and cultural safeguards which entail employing measures to protect cultural heritage and religious sites, and to prohibit involuntary resettlement without adequate compensation.
Prioritisation of the social well-being of communities is a fundamental aspect of carbon projects which explains why the project design documents must indicate the employment opportunities for skilled and unskilled locals as well as how the project will contribute to sustainable development and alleviation of poverty.
Importantly, the regulations provide for distribution of benefits. At least 40 percent of the net profits from the previous year should be remitted to the community for land-based projects like forests and 25 percent for non-land-based projects such as energy efficient cookstoves.
Overall, Kenya’s efforts to develop a legal framework that protects community interests in carbon projects are encouraging. Now that the framework is in place, we look forward to its full implementation and enforcement because, as with mandazi, the proof of the pudding is always in the eating.
Beatrice is Partner and Head of Projects, Judy, Director, Projects, Energy & Restructuring Practice at DLA Piper Africa, Kenya (IKM Advocates) And Angela an Associate in the same department
