TERMS OF REFERENCE FOR THE “AGENDA SETTING REPORT” OF THE KENYA CIVIL SOCIETY PLATFORM ON OIL AND GAS

TERMS OF REFERENCE FOR THE “AGENDA SETTING REPORT” OF THE KENYA CIVIL SOCIETY PLATFORM ON OIL AND GAS

Closing date: 15 Jan 2014

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Background

Oxfam wishes to support the Kenya Civil Society Platform on Oil and Gas to develop an agenda setting report on Kenya’s emerging oil and gas sector. This will be a key document for the recently established platform, outlining key demands for the new government and serving as a common advocacy platform and benchmark for future advocacy.

The Kenya Civil Society Platform on Oil and Gas (“the Platform”) was established in February 2013. It seeks to bring together Civil Society Organizations and networks working around oil and gas resource management including issues of environment, land and livelihoods to share common advocacy priorities and to coordinate our diverse and collective views to effectively influence government policies and legislations.

As Kenya embarks on a process of fast-tracking oil exploration, it is critical that the Platform is able to identify key priority areas to be addressed by the Platform itself and other collaborators. To this end the Platform wishes to commission an “Agenda Setting Report” that will seek to shape public debate on how Kenya’s oil and gas reserves should be exploited.

Objective The report will: • Present the Platform with a comprehensive overview of the state of relevant policies, legislation and institutions related to the exploration and production of oil and gas. • Articulate key demands to national government to be made by the Platform • Act as a baseline for the Platform’s future advocacy work

Methodology The successful consultant(s) will be expected to combine a desk review of published and grey literature with key informant interviews with informed individuals in government, the private sector (particularly companies engaged in exploration), civil society and regulatory agencies. The consultant will present a first draft to the Platform Steering Committee, focusing on the key issues outlined below. Based on this, and on its own assessment of what is politically feasible, the Platform Steering Committee will identify the key messages it wants to put forward in the final report. These will be incorporated into further drafts.

Key issues to be addressed in the report

Following are key issues that we expect to see addressed in the report. While each may be a discrete chapter, there are certain key issues that should be addressed in each section: • What environmental safeguards exist and how effective are they? Do requirements take adequate consideration of existing livelihoods and the impact of investments on same? • Does proposed/current legislation adequately protect community land rights in exploration areas? And where applicable provide for compensation? • To what extent does current policy delineate government functions from Company while incorporating community needs? • Government plans for managing security issues in exploration areas. To what extent does proposed legislation for the sector allow for or undermine affected communities’ involvement in investment decisions? Does proposed/current legislation offer adequate provisions for engagement of local communities? This includes the Energy Bill and upcoming amendments to the Petroleum (Exploration and Production Act) 1986 • Review of current MOU between companies community and government • Does the legislative framework adequately address concerns over local content, particularly supply of goods and services at county level? Are there any gaps in legislation? • While focusing on the national level the report should also consider of the role and capacity of new County level institutions when relevant.

Overview of the sector in Kenya and likely future development The report should give us an accurate picture of the state of the industry, to include the following: • Key operators, their exploration/production rights, discoveries so far and likely future plans. • Overview of relevant infrastructure plans. • Have any operators engaged in best practice at this initial point with regards disclosures and operations that may be replicated in the sector?

Overview of the international context The report should provide an overview of relevant international institutions, processes and requirements, to include: • EITI • Dodd-Frank payment disclosure requirements for US listed companies. • EU payment disclosure requirements for extractives’ companies listed in Europe • Opportunities for the platform to engage with these regimes and Implications of same for Kenya Overview of the legal and regulatory framework

Key provisions of existing policy and legislation, to include: • Process for allocating exploration rights • Key provisions of the existing model Production Sharing Agreement • Requirements governing disclosure of PSA terms, production, and revenue. • Strength of environmental safeguards, Has NEMA undertaken follow up reviews of the implementations of EIA conditions? Has a sector wide strategic impact been undertaken?
• Has a review of impact of exploration activities so far been undertaken • Relevant county/senate level legislation with impact on oil and gas sector Identify gaps/best practice from similar jurisdictions new to the oil and gas sector and where applicable propose policy options.

Overview of critical institutions Report should assess readiness of key institutions charged with governing and giving oversight to the sector, including: • The Ministries of: Energy, Land, Housing and Urban Development; Environment, Water and Natural Resources • National Oil Company of Kenya • National Fossil Fuels Advisory Committee • National Environment Management Authority While focused at the National level, the report should indicate the most relevant County level institutions and how they relate to National level institutions and processes.

Priority Areas Arising from the above, the report should identify priority areas on which the Platform should be active. Each area should have demands that reflect the Platform’s concerns, and are achievable within proposed timeframes.

Deliverables The consultant will present a draft report (hard copy) to the Steering Committee and present the same in a feedback workshop soon after. Based on feedback from the Steering Committee, at the feedback workshop and in written form, final report will be submitted within 3 weeks. The final report should be no more than 30 pages long, including annexes and executive summary. The consultant should make available to the Platform copies of any documents, whether grey or published, that have been obtained in the course of the work.

CONSULTANT PROFILE a. Understanding of the legal context on oil and gas development, b. Possess Legal review and analytical skills, c. Understanding of civil society programming and, development of advocacy interventions d. Understanding of political socio-economic context of Kenya, Knowledge of EITI and other international disclosure regimes.

CONSULTANCY DURATION The entire period of this consultancy will be three months that will include preparation, development of two drafts of the report, actual field days and research, and submission of final report.

ADMINISTRATIVE INFORMATION a. Tax and VAT arrangements Oxfam will deduct withholding tax from the consultancy fees which will be in conformity with the prevailing government rates.

b. Bid Requirements Consultants who meet the requirements should submit a maximum of 3 pages expression of interest, which should include the following: i. A suitability statement, including commitment to availability for the entire assignment. ii. A brief statement of their history working on assignments similar to the proposed assignment. iii. A detailed financial proposal, including daily cost per major activity. iv. Updated curriculum vitae consultant that clearly spell out qualifications and experience. v. Contacts of at least TWO organizations that have recently contracted the consultant to carry out similar assignments

c. Supervision The Consultant will report to a sub-committee of the Platform Steering Committee via the Oxfam Extractive Industries Adviser for Kenya and Tanzania and the platform coordinator Final payment for the work will be effected once a majority of Steering Committee subcommittee members are satisfied with the final report.

How to apply:

Interested and qualified consultants should send their applications latest by 4.30 P.M. Kenyan time on 15th January 2014 to: kenyajobs@oxfam.org.uk and indicate in the subject line: APPLICATION FOR AGENDA SETTING REPORT OIL & GAS. Please note that only the successful and shortlisted applicants will be contacted.