The biggest frustration for a rational thinking Kenyan, is the flimsy justification of extra-judicial killings by the police.
Whether it is the Wagalla Massacre (they provoked the government), displacement and killing of Kikuyus during our tumultuous electoral cycles in the 1990s (they should know how to vote), or the state-sanctioned shoot-to-kill of the Mungiki (they are a menace), it always escapes me why we bother having a functional government, with a well-paid judiciary where showing up for work on the most important day is not necessary.
Or think about the use of excessive force and inexcusably, using live bullets on demonstrators who are not satisfied with the outcome of an election annulled by the Supreme Court.
To a section of Kenyans, the demonstrators in Nairobi, Kisumu and Migori, should be deterred using force because they destroy property. When we have people, who value property more than human life, we have a problem.
We sunk Sh 216 billion to the security docket last year. We invested in police trucks, water canon trucks, tons of teargas and rubber bullets, presumably. The various policing units, we hope are trained well in armed combat and handling riots. Why is the use of live bullets still an option?
Few people ask that. To many, if a live bullet can end a demonstration, and we go back to “our normal lives”, the better, because “business is suffering, and we can’t politick all year around”.
Yet politics determines our lives. The best question we can ask, is why are Luos ready to demonstrate, what justifies their anger that even a live bullet cannot stop them.
Unless you sufficiently understand the history of Kenya and how marginalization works, you will not understand why some communities are bandits, some sympathise with terrorists, and why the Northern Frontier will always be a hotbed of violence that our police and military will never adequately contain. And yes, you will never understand what makes the Luos angry, constantly agitating.
The 2017 elections have claimed more than 60 lives according to the Human Rights Watch report on the elections. Those killed include a 6-month toddler, a 10-year old girl playing in their apartment balcony, and several young men, some pulled from their homes at night, and killed and blanketly condemned as destructive protesters.
The Luo body is denigrated by the state, stripped of its life, and has been at the receiving end of state brutality, time and time again.
To the State, and its apologists, the Luo are a handful lot. We know the stereotypes: they are anti-business, violent, and difficult to appease. The Jubilee Party Vice-Chair David Murathe told KTN news network,
“The opposition (read Luos) have nothing to protect. They have no stakes in the economy.”
How come in Kenya, some people have a stake and others, don’t.
Murathe was trying to justify the use of excessive force, because where he comes from, property ranks higher than the sanctity of human life. To Murathe and his ilk, connecting poverty to protest is intellectually taxing.
It is an erroneous assertion that the opposition is anti-business and pro-Jubilee people are pro-business and prosperous.
Nigerian writer, Chimamanda’s Adichie’s said in the much-publicized TED Talk, The Danger of a Single Story, “Stereotypes are not necessarily untrue, as they are incomplete.”
The single story of the disorderly nature of the Luos, with a penchant for destruction, enabled by the cheap soundbites that our aptly labeled ‘Githeri Media’ goes after when tracking protesters, has made it possible to justify police brutality and violence.
When police talk of forestalling violence during elections, sadly it means sending police trucks to NASA strongholds mostly occupied by the Luos, whether in Nairobi (Kibera and Mathare) or Kisumu, Siaya and Migori.
We were here in 2007. We saw on live TV as an unarmed young man was shot dead as he protested a dubious election outcome. In 2013, the police did everything in their power to ensure that violence did not breakout, but it was more muted and creatively contained. But we never solved the problem of conducting credible elections, neither did we learn to have a more inclusive government.
And in 2017, inevitably we were going to end up where it all begun: in 2007 with a disputed presidential election.
But this did not begin in 2007. The two politically dominant communities, Kikuyus and Luos, did not begin their political competition today. It started long before the pre-Independence days, even as the colonialist tried to drive a wedge between them. But they buried their difference for the good of Kenya.
A history of marginalization
What makes the Luo constantly agitate for their rights stems from the diseased body politic of Kenya. If we learn to see it as a quest for equality, not just for the Luos, but for every Kenyan who suffers from the silly government policies, corruption and nepotism, it will bring us closer to relating to the humanity of the Luos.
The Kikuyus and Luos came together and their unity was instrumental in kicking out the British colonialist. But we got our independence at the height of the cold war, like some countries in the world, the president and vice-president would ideologically drift apart, and the seeds of marginalizing the Luos were planted, and so was the seed of agitating for their rights.
After independence, 40-odd tribes found themselves lumped together in an experiment called Kenya. Some of the communities had a head start. Walter Rodney, in ‘How Europe Underdeveloped Africa’, outlined how the colonialists annexed productive parts of the country, developing them, and by the time they left, the places had schools, churches, hospitals and basic infrastructure. And to date, such places are still far advantaged, no amount of denial can erase the fact.
In 1965, Tom Mboya and Mwai Kibaki, then in charge of the Ministry of Economic Planning and Development wrote a simplistic paper, Session Paper No. 10 that will guide Kenya’s faulty development agenda for the next 45 years.
The paper simply adopted the colonial system where areas with the most abundant natural resources, good land and rainfall, transport and power facilities and where people were receptive to and active in development would receive more government funding in the hope that profits from such areas can be offered as loans to less productive areas.
This was obviously a primer for regional development disparities that will haunt the country for decades to follow. This was made the worse by the nepotism that governed the conscience of the founding father. Areas that were resource poor, or in opposition were doubly sidelined.
That precondition of developing areas that were ‘receptive’ to development was to be used to politically control areas that were amenable to the whims of the ruling elite. Former president, Daniel Arap Moi, famously said, “Siasa Mbaya, Maisha mbaya.” And this was a justification of sidelining the Luos and other communities that were either in opposition or didn’t have arable land or any resource the state could extract.
At the very heart of politics, as Harold Laswell aptly defined it, is who gets what, when and how. With a firm grip on power by the Kikuyu elite and Jaramogi Oginga Odinga leaning left, the marginalization of the Luo started shortly after independence. Luos with potential to take power and change the course of the Luo trajectory were assassinated; Argwings Kodhek and Tom Mboya died in that troubled decade of the 1960s.
Luos generally settled in opposition, especially after the brutal assassination of Mboya and events surrounding the shooting a dozen protesters in Kisumu on October 1969, when President Kenyatta went to open the Russian Hospital. So ironic that 48 years later, police were breaking into people’s homes in Kisumu, shooting and killing Luos, unsparingly. What is vexing is that the Luos who are usually killed are unarmed, and when armed it is the crude stuff like a stone, an odd metal, yet police are trained in armed combat and can easily disarm and violent protesters with an array of options. Use of live bullets is positively revulsive.
Then came the 1982 coup, where Luos were part of the top ranks, behind the short-lived and misguided coup. Many were jailed and executed after the coup. And the second president found yet another justification to sideline Luos.
By 1990, another Luo, one of the few serving the government at the top, was brutally assassinated. Even though Robert Ouko was in the government, and not much of a popular figure among the Luos he was still their illustrious son and his death was definitely a reminder of government hostility towards their community.
Ouko’s death happened towards the end of the Cold War.. The West changed tune and started advocating for multiparty democracy in Africa.
With both Luos and Kikuyus in opposition after President Moi’s twelve years in power, their collaboration given their population would have effectively ended Moi’s regime. The initial dalliance of Jaramogi and Matiba and other Second Liberation leaders, was a good move, but selfish interests overrode the common agenda, and the three major opposition forces participated in the elections separately, efficiently giving Moi another 10 years, until the opposition came to its senses in 2002, where again, Kikuyus and Luos would collaborate to save Kenya from a dictatorship.
By then, the Luos had been marginalized for more than three decades. Raila Odinga’s brief cooperation with President Moi in the late 1990s and early 2000s did bring a few goodies to the people of Nyanza, with the Kisii-Kisumu Highway getting a much-needed facelift. Kisumu was made a city, with too much fanfare and, cosmetic as these changes were, Luos did taste, what being in government felt like.
Then 2002 came, and Kibaki got to power and disregarded the MoU that brought him to power and effectively ended the Kenyan dream. And in its place, he entrenched a terrible ethnic cronyism that restored the old GEMA elite network that Moi’s 24 years of presidency scuttled. In record time, we would see banks, universities, and businesses owned by the GEMA community start to flourish, even as Luos, and other marginalized communities were kept at bay from key state jobs. Instead marginalized communities were asked to be content with tokenisms, like the Constituency Development Fund (CDF). Most communities were kept from the center of action, until the 2010 promulgation of the New Constitution entrenched devolution, did many communities start to feel as part of Kenya, since they could get a slice of the national cake.
Legally, devolution only guarantees counties 15 per cent of the action. The remaining 85 per cent is still up for grabs and cause for clamor for presidency.
When we read that the president has cancelled Sh 2 billion coffee debts in Kirinyaga, or Sh 1 billion to Miraa farmers, or the government spent Sh 61 million to build a State-of-the-Art fishing factory in Nyeri, people will agitate for similar opportunities. Other parts of Kenya rarely get the same treatment.
When the president gets to bail other communities’ dead industries, it is for political expediency. But even so, what is the point of reviving Mumias, when cheap sugar is imported or smuggled, rendering the efforts of farmers futile.
The carnage of dead sugar industries in the country’s sugar belt, has robbed many people in Western Kenya their wherewithal. The killing and privatization of industries such as KICOMI by the Structural Adjustments Programs and other economic programs that favour cheap imports at the cost of our industrial economy have played a big role in rendering the Luo poor.
And it is poverty that makes them agitate for a piece of Kenya. It is easy to say, if it is not only the Luos who are poor, how come other tribes are not as violent?
For one, it is the Luos who have the critical mass to agitate, and that is why other communities that feel marginalized too, usually rally behind them. Besides marginalization in each community manifests itself differently. In pastoralists communities, banditry thrives, early marriages are common and there is high levels of illiteracy. In the Coast, secession calls by outfits such as MRCs (Mombasa Republican Council), the drug abuse scourge, child prostitution, are red flags of what marginalization can do.
Culturally, the Luos are outspoken and have always been an open society, where anyone can speak truth to power. Everywhere I have been, I meet Luos who cannot keep quiet in the face of injustice. Like the one-time honorary member of Black Panthers Movement, Stokely Carmichael said, “the secret of life is to have no fear, it is the only way to function.”
Luos have been so marginalized that fear is no longer an option, that is why no amount of gun-toting, trigger-happy policemen will silence them. They have infected other Kenyans to fight for their rights, and on Friday after the October 26 presidential rerun, we saw the same brutality being extended to Bungoma residents.
Luos Lives Matter
Regardless of how you relate with Luos, whether you found them repulsive, loud, or annoying, their lives matters. Each community will have certain traits, some likable, some disagreeable, but it is this diversity that makes our lives richer.
A people’s collective behaviour is a product of long-held customs, filtered through history, nurtured by their environment. Since we don’t share similar environments, we are likely to be different in our outlook of life. But these differences are smaller compared to similarities.
Luo parents want their children to succeed as much as Kikuyu parents want their children to succeed. No parent wishes to see their son killed by the very person they expect to protect their child.
If their way of life is at variance with how you lead your life, the least you can do, is not to wish them harm, or cheer the police in their murderous spree. Police brutality in a country like ours spares no one.
Like Chinua Achebe said of Igbo, in tackling the Igbo persistent Igbo problem in his evergreen collection of essays The Trouble with Nigeria, “The Igbo are a necessary ingredient to the modernization and development of Nigerian society. It is neither necessary or possible to suppress them. Nigeria without the inventiveness and dynamism of the Igbo would be a less hopeful place than it is.”
The same can be said of the Luos. Overt and covert exclusion of the Luos, and other communities from key government posts and resources will always make them agitate and will never give a government peace until they are made to feel part of the country.
It is really that simple.
By Silas Nyanchwani
Silas Nyanchwani is a Kenyan writer and social commentator.
Gold and Gemstone Policy in Kenya: The Devil Is in the Detail
Small-scale artisanal gold and gemstone mining is decades-old but lack of knowledge and expertise, and limited support from the government have hampered the sector’s development.
The evergreen town of Kakamega is a picture of the hustle and bustle typical of any Kenyan town, with many hundreds of folks going about their daily business. But as you leave the town behind, the environment changes, a lush countryside of cultivated fields and densely planted trees giving no hint of the gold mining taking place in the nearby locality of Ikolomani.
Across the country, 432 miles to the southeast of Kakamega is the beautiful transit town of Voi, the largest town in Taita Taveta County which lies at the foothills of the Sagalla massif. But the much smaller town of Mwatate is the county capital, and the source of gemstones that Kenyans from other parts of the country know little about. Mwatate has rubies, red garnet, emeralds, moonstones, tsavorite, okenorite, and many more.
Small-scale artisanal gold and gemstone mining has been going on for decades in both Kakamega and Taita Taveta counties, undertaken mainly by local artisanal miners and by a few non-locals and foreign nationals.
The Mining Act 2016 recognises three levels of mining rights: artisanal mining permits, small-scale mining permits and large-scale mining licences. The small-scale permits and large-scale mining licences are issued at the national level through the Kenya Mineral Rights Board (MRB), while the artisanal mining permits are issued through the county artisanal mining committees. The Mineral Rights Board and the county Artisanal Mining Committees are administratively governed by the State Department of Mining under the Ministry of Petroleum and Mining. The Director of Mines and his representatives in the various counties are in charge of overseeing the implementation of the ministry’s policy frameworks. The Ministry of Petroleum and Mining has key mining regulations in place to govern this process.
But even though the Mineral Rights Board is in place, the process of setting up the county Artisanal Mining Committees (AMCs) has been long drawn out and there seems to be no hurry to implement the mining regulations that were commissioned in 2017. Kakamega County’s AMC was gazetted on 27 March 2020 and the team commissioned on 20 July 2020. However, the AMC has yet to begin its work as the key governmental mechanisms necessary to run the committee are still pending and so no mining permits have been issued to artisanal miners in Kakamega County since the gazettement.
Artisanal miners in Taita Taveta County are in a different situation altogether. The list of members of the county AMC constituted through their appointing authorities has been forwarded to the Ministry of Petroleum and Mining but the AMC has yet to be gazetted. When contacted on this issue, one of the reasons cited by the ministry officials was that factions within the mining fraternity have disputed the list of people proposed to be part of the AMC.
Applications for small-scale mining permits are submitted to the Mineral Rights Board through the Mining Cadastre Portal. The platform is meant to bring these services close to the miners but they complain of the slow response from the Ministry of Mining. They must travel to the ministry to submit the paperwork even after uploading it onto the portal. Access to a stable internet connection is also a challenge in the remote areas of Taita Taveta and Kakamega while some of the small-scale miners lack the capacity to use the online system. Most have to travel to the Ministry’s offices for assistance or else hire someone with the skills to undertake the work for them, rendering the application process both tedious and time-consuming.
The ministry has not undertaken any capacity building and shows a lack of commitment to make the system more efficient and user-friendly. The biggest hindrance, however, is the low budgetary allocation made to the Ministry of Mining, which leaves the staff with limited options in their efforts to serve small-scale miners.
The stated goal of the Mining Cadastre Portal is “to provide an electronic platform for all stakeholders in the mining sector in Kenya to engage directly with the Ministry of Mining.” Existing mineral rights holders (those with mining permits and licenses for mining) or those with pending applications can download, complete and upload the requisite documents. Prospective mineral rights holders can also submit their particulars and other supporting documents through the portal.
The portal is also a one-stop shop for information on mining activities in Kenya. It has a cadastre map of the key areas with mineral resources, as well as details of licence holders, and on-going applications; a click on any part of the map automatically displays the existing information about that specific geographical location.
For artisanal and small-scale miners (ASMs) in Kakamega and Taita Taveta, the portal has had a significant impact on access to public information on mining in Kenya. But the portal also has its limitations. Mining is a highly skilled sector that requires high levels of expert knowledge. Some of the requirements on the portal are beyond the scope of knowledge of most gold and gemstone miners in Kakamega and Taita Taveta. For instance, the portal requires a miner to take the coordinates of the area for which they are applying for a permit. This requires equipment that is typically used by geologists and land surveyors and that is expensive to hire or purchase. A sketch of the area or locality where the miner intends to undertake extraction is another requirement, a very sophisticated process that miners in general cannot undertake on their own.
Lack of knowledge and expertise coupled with lack of access to the internet, or even computers, therefore leaves the small-scale gold and gemstone miners unable to fully exploit the portal.
Aside from these limitations, however, the Kenya Mining Cadastre Portal has been a game changer when it comes to eliminating brokers from the mining sector and it has proven to be a more efficient system than the manual issuing of permits and licences
For instance, unlike the manual system that had no clear guidelines regarding payments, all fees due to the ministry are clearly indicated on the portal and paid directly to the ministry through a cashless system. Moreover, as the portal has centralised all the country’s mining information, cases of loss or manipulation of files or documents have reduced significantly.
The gold and gemstones that are mined in Kakamega and Taita Taveta are exported out of the country with or without any value addition under the provisions of the Mining Act of 2016 which require an export permit from the Cabinet Secretary the application for which is made on the Mining Cadastre Portal.
But while the law on the issuance of mineral export permits is sufficiently detailed, its implementation is the biggest challenge and I have no doubt at all that gold and gemstones are imported into and exported out of Kenya without any form of declaration. There are many routes along the porous Kenyan boarders through which the minerals can slip in or out of the country.
For instance, most of the gold that is mined in Kakamega is taken to Uganda by road undeclared. How can this be remedied, especially for gold and gemstone miners who want to run a clean business? Also, the process of implementing the gold refinery centre in Kakamega and the gemstone value addition centre in Voi remains pending. If the sector is streamlined, then the issue of traceability of gold and gemstones will be resolved and the mineral export licence will be of value to the artisanal and small-scale miners in the sector.
The article is done with support from Diakonia Kenya Country Office under the Madini Yetu Wajibu Wetu (Our Minerals, Our Responsibility) Project. Views expressed in the article are those of the author.
Sustainability Is Key in the Management of Natural Resources
For mineral wealth to have a positive impact there must be transparent policies, reasonable public regulation, commodity flows and sustainable and varied production systems.
Natural resource wealth has massive potential and can hugely impact the economy of a country. The natural resource sector and more particularly the petroleum and mining industry is distinguishable from other sectors of the economy in that ventures in this sector are high-risk and prone to failure if not competently undertaken. Moreover, resources in the sector are typically immovable and must be exploited on the site of their discovery.
Being exhaustible and non–renewable, these resources call for prudent exploitation and management that must also factor in intergenerational equity. And unlike other industries, the exploitation of natural resources is community-based, in the sense that the activity takes place inside communities, providing opportunities for conflict as the business pursuits of an investor threaten the general welfare of the community.
Despite the lucrative nature of the sector, it comes with a number of challenges. Learning from the many countries that have experienced the “resource curse”, it is imperative that from the outset, the following issues are taken into consideration if at all a country wishes to progress and develop through the proceeds of its natural resources.
First, a country endowed with mineral resources should always plan to diversify its economy using the proceeds from its mineral wealth. This is done to avoid the Dutch disease and to ensure that the economy can withstand shocks caused by fluctuating prices. Venezuela and Nigeria are two countries that experienced economic recession due to a fall in the price of oil.
Second, while mineral exploration and production automatically comes with a high pollution risk, there is need take contingency measures to mitigate any such damage. Deliberate steps need to be taken to avoid the Niger Delta situation where land has been so degraded that the cost of cleaning up is estimated at £900 million.
Third, the phrase “resource curse” arises from the many cases where the discovery of minerals has resulted in retrogression instead of progress for the communities within which the commodity has been found. More often than not, these host communities experience conflict when the expected benefits are not realised, sometimes because of unrealistic expectations but more often because of corruption. It is important for investors and communities to engage from the outset, ideally with the government facilitating the process. Increasingly, however, civil society and religious organisations are stepping in to fill the gap left by unresponsive governments.
It is clear that natural resource wealth can provide opportunities for countries to improve the living standards of their people and can positively impact the development of nations. Indeed, it is a commonly held belief that nations richly endowed with natural resources are more advantageously positioned to shape the economic, physical and social aspects of their development than those less endowed.
However, the paradox of plenty has been the subject of extensive research by scholars and practitioners precisely because many resource-rich countries are associated with increased poverty levels, civil war, reduced economic growth, greater inequality and social injustice. This is because of a lack of goodwill to develop other sectors of the economy that are not necessarily dependent on natural resources, among other factors.
There are however, countries that can be cited for having taken off successfully. Norway, one of the world’s richest economies, and Botswana, one of the largest producers of gemstones, have both clearly demonstrated how natural resources can be harnessed to foster development, build the economy and generally improve people’s livelihoods.
Conversely, countries like the Democratic Republic of Congo, with its has huge deposits of natural resources including cobalt which is highly sought after and is of great economic value, and Angola, with its vast reserves of natural gas, are examples of how resources can come to be regarded as a curse due to the civil wars, conflicts, under-development, low GDP, and the many other problems associated with these nations despite being resource-rich.
A number of academic studies also suggest that natural resource wealth slows down the economic growth of a country. This narrative is however challenged by countries like Singapore, the United Arab Emirates and Taiwan which, despite being modestly endowed, have invested the revenue from their limited natural resources in the areas of education and research, have strengthened their policy and legal frameworks and institutions, and established parameters for advancing wealth creation and multiplication, as well as savings for the future generations.
Many theories have been advanced in an attempt to explain the resource trap in mineral rich countries. However, none of the hypotheses advanced has identified the root cause of the paradox of resource abundance. This is because, by themselves, natural resources cannot be classified as either a curse or a blessing; they are opportunities that prudently exploited can jumpstart an economy and bring long-term fiscal benefits to a country.
Unfortunately, a majority of resource-rich countries are anti-democratic and have opaque policies and institutions. Predatory governance, greed and corruption often lead to the signing of secretive and exploitative production contracts that only benefit the investing multinationals and their countries of origin.
However, there are many tried and tested strategies and approaches that have resulted in strong economies with stable and functioning governments. For mineral wealth to have a positive impact and be a blessing there must be transparent policies, reasonable public regulation, commodity flows and sustainable and varied production systems.
A good example is the resource-rich state of Alaska in the United States where 9.6 billion barrels of oil were discovered in 1969. That year Alaska collected US$900 million from the oil lease sales but all the money was soon squandered. Worried that money from the oil resources would go to waste and benefit just a few, Alaskans voted to have the proceeds spent on state development.
Seven years later, and with infrastructure development largely achieved, a public vote established the Alaska Permanent Fund through a constitutional amendment. The fund was designed to receive at least 25 per cent of the oil revenue and in 1982 a dividend programme was added to the fund. The sovereign wealth component promotes and ensures intergenerational savings while the dividend fund ensures that all residents of Alaska enjoy the fruits of their natural resources by receiving annual dividends in the form of cash transfers. Since the first deposit of US$734,000 was made in 1977, the fund had over US$64 billion dollars in 2019 with each resident of Alaska receiving US$1,606 in dividends that year.
From the example above, it is very clear that a country can truly develop using its natural resource wealth. One of the ways in which it can do this is by securing tenure rights to natural resources through regulations that determine who can use the natural resources, for how long and under what conditions. Tenure rights clearly specify the expectations of each stakeholder with regards to their roles and, importantly, the role that the hosting communities are going to play during the entire period of the extraction of the resource.
Contract transparency is another way in which good governance can prevail in the extractive industry. Resource extraction contracts signed between the host governments and the multinational companies should be made public to provide general information to the public and ensure transparency, scrutiny and accountability.
There are countries, like Ghana, that support the idea of contract transparency as a fundamental principle in managing their extractive industry, but many nations have not fully embraced the idea of contract transparency for fear of sparking public outrage and also to conceal the information for personal gain. Through contract transparency, everything that is in the contract is laid bare and the specific expectation from every stakeholder is made public. This promotes good governance and transparency and also ensures that the benefits trickle down to the community level, promoting sustainable development.
Creation of a strong regulatory and institutional framework is also another way of ensuring good governance in the management of natural resources. The legal or regulatory framework can either enhance or inhibit development in the extractive industry and there is no template for what needs to be done in order to ensure a strong legal and regulatory framework. Each country has a unique opportunity to come up with its own tailor-made legal and regulatory framework that works for it and this involves developing laws and regulations that address specific issues in the industry while at the same time safeguarding the interests of the communities and incorporating international best practices.
Having competent and functional institutions to implement the laws and regulations is another important step towards ensuring good governance in the management of the extractive industry. For the enacted laws to be effective, they must be implemented by institutions that are proactive and competent. Narrowing the implementation gap by ensuring that what is happening on the ground is in tandem with the provisions of the law is one of the critical roles of functional institutions.
A strong civil society can help in ensuring good governance in the management of natural resources. Civil society organisations provide information and have the moral legitimacy to set the resource governance agenda. They can help to democratise power in resource management, and can work to keep other resource governance actors like governments and companies accountable. The civil society plays many roles, among which is the monitoring role, where it ensures that all the state and non-state actors play their role effectively in the management of resources and, more importantly in monitoring and ensuring that benefits are realised at the community level. They also help in highlighting corrupt practices in the industry and non-adherence to the internationally recognised practices guiding the extractive sector. Civil society organisations also have a role in representing the views of ordinary citizens on issues of national importance, in this case the extractive industry.
Lastly, civil society also plays a role in setting the agenda to ensure that the interests of the public in general, and development, are given priority. According to the Institute of Global Environmental Strategies Report of 2007, governments are increasingly involving local communities and non-governmental organisations in the management of natural resources. The ways in which the different stakeholders are involved varies. In involving different stakeholders, the governments broaden the scope of engagement and possibly minimise the chances of achieving a negative impact, reduce conflict and increase efficiency in resource management.
And finally, natural resources cannot be discussed without mentioning the environment. In an effort to benefit from the natural resource wealth while dealing with environmental issues, the following principles should be considered: All decisions made must be anchored in best governmental practice in order to ensure best practice in perpetuity. Resources must also benefit communities away from the resource as the impact of pollution may be felt away from the immediate location of the activity. Where there is no scientific evidence of possible impact, an investor should provide contingency measures and where such evidence of possible impact on the environment exists—usually through an Environmental Impact Assessment—an investor must formulate measures to avoid harming the environment and a polluter must sufficiently compensate for harm caused. We must give future generations the same opportunity to have access to a healthy environment that we as a generation have been given.
The article is done with support from Diakonia Kenya Country Office under the Madini Yetu Wajibu Wetu (Our Minerals, Our Responsibility) Project. Views expressed in the article are those of the author.
Time To Address Compensation and Resettlement Issues in Kenya’s Mining Sector
The Land Act, the Mining Act and the Land Value Act are inherently contradictory and the country lacks a national policy on issues arising from involuntary displacement.
Vision 2030 promises to transform Kenya into an industrialised middle-income country and, to that end, proposes ambitious projects which include the Standard Gauge Railway (SGR), the Lamu Port-South Sudan-Ethiopia Transport Corridor (LAPSSET), multipurpose dams and the development of oil and other mineral resources among others.
Large-scale projects, including mining projects, catalyse socio-economic development, which is what many people expect and can easily see. On the other hand, they undermine human rights, cause livelihood disruptions and break up the social fabric of the affected communities. This article focuses on this second aspect and examines compensation and resettlement policy gaps and challenges with respect to the mining sector in Kenya.
Large-scale mining projects lead to involuntary displacement, deprive those affected of the use or access to their resources, disrupt sources of livelihood and interfere with the cultural fabric of the affected communities. International safeguards developed by the World Bank and the Africa Development Bank on involuntary displacement recommend that all community concerns must be taken seriously in the planning and implementation of all investment projects.
World Bank guidelines provide that involuntary resettlement should be avoided and where it is unavoidable, all the people affected must be fully and fairly compensated. Moreover, compensation and resettlement should be seen as an opportunity to improve the livelihoods of those affected. However, the legislation currently guiding compensation and resettlement in Kenya does not regulate these processes in a clear and specific manner.
Take for instance the story of Phase 2A of the Standard Gauge Railway (SGR) that runs from Nairobi to Naivasha traversing Nairobi, Kajiado, Kiambu, Nakuru and Narok Counties, a project which was delayed for three years due to land acquisition and compensation issues.
In the June 22 2019 edition, The East African published stories of human suffering caused by the project. A mother of three, Ms Kusero was promised Sh2 million for her quarter-acre property but a house made of recycled oil drums is all she received as compensation for allowing the SGR to run through her land. Hers was one of many such stories of families whose land was compulsorily acquired for the project. On paper, they were paid billions in compensation but in reality, only a few actually received compensation.
Ms Kusero says that for people like her there were no negotiations and raising grievances regarding compensation was extremely frustrating. “You go to the National Land Commission and you are asked to go to the Ethics and Anti-Corruption Commission. Then you are sent to the Directorate of Criminal Investigation and Director of Public Prosecutions before being bounced back to the National Land Commission. In the end you get frustrated without redress.”
The second story is about the extractives sector and concerns compensation owed by the Kenya Fluorspar Company to the Kimwarer Community in Kerio Valley. After exploration and confirmation of the existence of viable fluorspar, the company excised land and started its mining operations before it had compensated and resettled those it had displaced. There were no consultations whatsoever regarding compensation.
A task force report on the Review of Fluorspar Mining in Kerio Valley established that some attempts at compensation were made. In 1982, two cheques of Sh3,606,000 and Sh500,000 were released by the National Treasury to the District Commissioner to compensate the affected residents. The land compensation value was determined at Sh450 per acre of which Sh50 was deducted directly by the District Commissioner as contribution to a local school fundraiser in the Kimwarer area.
The affected residents who wanted alternative land in compensation were promised they would be resettled on Kilima I and II and Grosell farms in Uasin Gishu. They were also promised that they would receive shares in the Flourspar Company and in the Wagon Hotel in Eldoret town. Those among them who attempted to settle in the promised land were later evicted and accused of invading private property. To date, the victims of these atrocities have not received justice.
Gaps and challenges in the policy and legislative frameworks
Large-scale mining operations require massive tracts of land and often lead to significant human rights violations. Communities whose livelihoods depend on land find themselves in a struggle to defend their rights against the mineral rights granted to investors who are usually large-scale multinationals acting with the full support of host governments.
Kenya’s constitution sets out the general principles of equitable, sustainable and efficient use of land and establishes forms of land ownership. It vests ownership of mineral resources in the government, which means that any land with mineral resources can be compulsorily acquired in the public interest. It further protects the right to property from unlawful deprivation of ownership or limitation of enjoyment unless for public purposes or in the public interest in which case prompt, just and full compensation is required. It is from these provisions that mineral resource projects draw justification to cause involuntary displacement.
Kenya passed a new Mining Act in May 2016 to bolster the legal regime and reinvigorate the mining sector. The Act provides that where a mineral right disturbs or deprives access to the landowner, causes damage to property or occasions loss of earnings, the landowner may claim compensation whose payment must be prompt, adequate and fair. It doesn’t define what “prompt”, “full” and “just compensation” mean. The mineral rights holder is responsible for all the compensation and resettlement costs.
Moreover, the Mining Act appears to overlook the sensitivity of cultural resources. It does not protect or seek to identify cultural assets. Instead, it provides that no demand or claim for compensation shall be made for any loss or damage for which compensation cannot be assessed according to legal principles. Cultural resources are sensitive owing to the level of emotional reaction they spark when interfered with. They include spiritual sites, shrines, medicinal plants and graves whose value cannot be determined using formal processes but only through consultations and negotiations in good faith. The World Bank’s cultural safeguards on involuntary displacement provide that cultural property should be identified, protected and appropriate actions taken to avoid or mitigate adverse impacts, and that interference with cultural assets may only be justified when the loss or damage is agreed to be unavoidable.
The Land Act empowers the National Land Commission on all matters related to compensation. The Commission has the responsibility to make inquiries and determine interests in the land, receive claims of compensation and facilitate just compensation. It does this on request from agencies seeking to compulsorily acquire land. From 2013 to 2019, the Commission paid-out Sh38.273 billion in compensation of which 75.2 per cent went to the SGR and road projects. Within the same period, neither land acquisition nor compensation was undertaken by the Commission for mining-related projects, which raises the question as to how land acquisitions and compensation for extractives are carried out.
Parliament passed the Land Value (Amendment) Act In 2019 to address concerns relating to compulsory land acquisition, compensation and resettlement. One of the gains in this law is that it defines “just compensation”, “prompt” and “full”, terms that are used in the Mining Act, the Land Act and in other laws without clarity. Accordingly, “Just compensation” means a form of fair compensation that is assessed and determined on the basis of the criteria set out under the act. “Prompt” means within a reasonable period of time but not more than one year after the Commission has taken possession of the land. “Full” means the restoration of the value of the land, including improvements made on the land at the date of notice of acquisition.
It is to be noted that unlike in the past where the NLC was required to compensate the landowner before taking possession, the Land Value law now allows possession of the land before compensation is paid. This is contrary to the Mining Act which provides for prior payment of compensation. Taking possession before compensation would disadvantage the affected persons and the one-year period set for paying compensation is too long especially for large-scale mining projects that normally deprive the owner of use of property such as farmland, homestead and grazing areas. The World Bank standards require that compensation is paid in full before displacement or restriction of access.
The Land Value law also provides criteria for assessing the value of compulsorily acquired land based on a land value index to be developed by the Land Cabinet Secretary in consultation with county governments and approved by the National Assembly and the Senate. Assessing land value for compensation purposes requires wide consultations with the affected persons and the relevant agencies, which this Act does not seem to embrace. As provided for, the development of a land value index excludes the participation of the National Land Commission, land valuation agencies such as Surveyors of Kenya, government ministries such as the Ministry of Petroleum and Mining whose main work causes involuntary displacement.
Key issues and action required
The first issue is the fragmentation of the legal frameworks that guide compensation and resettlement in Kenya. The country lacks a national compensation and resettlement policy that standardises compensation and resettlement and ensures that all socio-economic and cultural issues arising from involuntary displacement are properly addressed. The national policy framework on compensation and resettlement should be developed taking into consideration international best practices and safeguards to provide a harmonised policy direction that considers all the complexities that come with involuntary displacement. The policy framework should broadly articulate compensation and resettlement in such a way that it is understood to be an opportunity for improving the livelihoods of the affected people rather than as a process to subjugate them and worsen their livelihoods. At the very least, regulations on compensations and resettlement should be developed for the Mining Act.
The second issue is the uncoordinated institutional approach for compensation matters. The National Land Commission takes charge of both land acquisition and compensation based on requests and funds from the acquiring agencies whose roles are often unclear. The suggested national policy should provide a clear framework for institutional coordination and harmonise the efforts of all relevant agencies; compensation and resettlement must be a multi-agency function. In this way, overlooking community concerns will be minimised and, more importantly, the processes will be more transparent and less fraudulent. Effective institutional coordination will also enable an integrated grievance redress mechanism.
The third issue concerns the land survey regime; it is mired in corruption, inherently opaque and exploitative. Compulsory land acquisition heightens emotions and ignites serious land speculation perpetrated by public officers with privileged information who collude with greedy elites to defraud the state through inflated land prices.
Reforms to introduce transparent land surveying and valuation are required. This means strengthening the policy frameworks and the institutions involved and also requires a robust mechanism for monitoring compulsory acquisition, compensation and resettlement. It should become policy that a compulsory land survey is undertaken prior to the compulsory acquisition of any unregistered land.
The fourth issue is the absence of cultural resources as a factor of compensation and resettlement in the available legislations. Disruption caused by extractive projects on the social, economic and cultural ecosystems of the affected people can never be truly compensated or restored. Compensation merely helps the affected persons to continue with their livelihoods but does not and cannot restore their exact loss.
Legislations guiding compensation should clearly recognise cultural resources and all assets with cultural meaning and value for the affected people as an aspect of the process of negotiating compensation. Effective community participation must be allowed in identifying and deciding the compensation for cultural resources that may be affected by mining projects.
The final issue has to do with the procedures for paying compensation. Where the project affects the whole family, it is unclear whether compensation is awarded to an individual or to a household. Capacity building for the beneficiaries on the use of finances is also a concern and because it is rarely undertaken, waste of compensation funds, family disintegration, homelessness and other socio-economic concerns ensue. Support mechanisms to ensure effective financial planning are therefore important.
The lack of a mechanism to monitor the payment of compensation is another concern, leading to serious irregularities, corruption and human rights violations. Furthermore, the approach to dispute resolution needs to be harmonised to recognise structures at the county level. As they currently stand, the Land Act, the Mining Act and the Land Value Act are inherently contradictory.
The article is done with support from Diakonia Kenya Country Office under the Madini Yetu Wajibu Wetu (Our Minerals, Our Responsibility) Project. Views expressed in the article are those of the author.
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