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WINNIE: From Oppression Towards A Fuller Humanity

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I’m Winnie Winnie Mandela
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“Not until you have discovered what is worth dying for is life really worth living.”
Nomzamo Winifred Zanyiwe Madikizela-Mandela

Reminiscent of Freire’s analogy of liberation as a painful childbirth and while the evocation of ‘Mother’ can be suspect as witnessed in disempowering narratives of women who must carry the weight of the world on their shoulders, it interests me that people in South Africa as well as continental Africa and the Diaspora referred to departed Elder, Nomzamo Winifred Zanyiwe Madikizela-Mandela as Mother of the Nation, Mam’Winnie, uMam’Winnie, Mama Winnie or Mama Africa.

I hold‘Mama’ in esteem and context as an embodiment of the ‘Source’ and ‘Force’ that brings forth life. The life of a person, a people or a nation.The life in the ‘Fruit’ of the struggle for freedom and human dignity – liberation.

I first heard of Winnie Mandela during my teenage years. I simply knew of her then as the late South African Freedom Fighter, Nelson Mandela’s wife. It wasn’t until my young adult years that I started developing a deeper understanding of her role as a Freedom Fighter and Liberation Leader in her own right.

Everything I knew about Madikizela-Mandela was based on numerous stories told by local, regional and international media over the years, often portraying her as a highly contentious leader on a personal and professional level.

Deeply polarizing perceptions of Madikizela-Mandela continue to emerge following the news of her death on Monday, April 02, 2018 at age 81. People in South Africa and across the globe have eulogized this revolutionary leader in a variety of ways creating what feels like an emotionally charged, ‘love-you-hate-you-shut-up’ mosaic of ‘raw-ripe’, ‘bitter-sweet-sour’and in-between, powerful depictions – as if in competition for voice, space, light and life.

The concept of the cycle or continuity of life unfolds as the world mourns this revolutionary. She continues to inspire global narratives that are forcing many to ‘look’ at her life’s trajectory as a liberation leader – in life and death! A dynamic reflecting a duo-extreme and of shades in-between depending on what we ‘see’ when we ‘look’. A symbolic,’narratives tag-of-war’strives to cement what Sisonke Msimang and others have called Madikizela-Mandela’s legacy.

Based on what I have read, watched and conversations with people on and off social media, I have been struck by the varying descriptions of Madikizela-Mandela. Some of the words and phrases I have come across describe her as defiant, resilient, fierce, fearless, spirited, strong, brave, unbreakable, courageous, out-spoken, bold, passionate, resilient fortitude, flawed, militant, charismatic, radical, firebrand, despicable, complex, violent, murderous, corrupt, terrorist, tarnished, bully, kidnapper, Mandela’s ex-wife, among others.

Read also: Winnie and Wambui, a Tribute to Sisters in the Struggle

In some cases, these words hinge on a one-sided view of a wonderful, loving and beloved liberation leader or a cold-blooded, corrupt politician and adulterous murderer. Some have drawn their perceptions of Madikizela-Mandela from both ends of the spectrum while others remain conspicuously silent. Silence is a form of communication.

Zukiswa Wanner called out what she termed, “pseudo-intellectual attacks” some people are “writing about this complex woman” noting in a one of her Facebook posts, “On Mam’Winnie: If the black man is always suspect, the black woman is always guilty. And I ain’t got time for those who push the latter narrative, thank you”.

Rasna Warah called out “white-media vilification” of Madikizela-Mandela and the hypocrisy of a global patriarchal double-standard which ignores prominent male political leaders’ real or perceived transgressions yet takes “all gloves off when it comes to Winnie”. Warah also noted, “Winnie Mandela was no doubt a deeply flawed human being. But which South African can claim to have remained completely untouched or undamaged by the extreme violence and blatant racism of the apartheid era? If anything, we should admire Winnie Mandela for refusing to allow the apartheid regime to crush her fearless spirit – a spirit that could be bent but which could not be broken.”

Zukiswa Wanner reminded her fellow citizens in South Africa, “There is no historical record of men in the ANC or Pan Africanist Congress who raped their comrades, who stole resources donated by our anti-apartheid allies for those in camps in Angola, Tanzania, Zambia and Mozambique, and suffering the con­sequences for doing so”.

Wanner continued, “Instead, our collective vilifica­tion has been towards the one per­son who suffered more than most in the last 30 years of apartheid because she was a woman who did not behave as we expected. What we have is a record of Madikizela- Mandela being asked at the Truth and Reconciliation Commission to apologise for her involvement in Stompie Seipei’s murder. Jerry Richardson, the “coach” of the Mandela United Football Club, was sentenced to life for the teen­ager’s murder. Madikizela-Mandela was convicted of kidnapping and being an accessory in the assault of Stompie. Her sentence was reduced to a fine and a suspended two-year sentence on appeal”.

An excerpt from one of Stella Nyanzi’s Facebook posts on Madikizela-Mandela, “Her beauty, strength, courage, resilience, out-spokenness, defiance, militant charisma and radical fire often inspired me to stand tall in difficult times” … and… “yet her reported human failings also shook me to the core because they were outright vile”. Nyanzi resolved her multiple and conflicting perceptions of Madikizela-Mandela noting, “the greatest attribute was her beautiful complexity as a human being” who was “full of contradictions that make her life a grand enigma for inquiring minds. She was neither perfect nor pure evil. She was a huge paradox comprising several smaller paradoxical puzzles. Her tenacity and resilience astound me.”

Some people have praised and acknowledged Madikizela-Mandela’s contributions and position as a frontline leader in the liberation struggle in South Africa. Swift rebuttals and ‘clap-backs’ to local, regional and global media outlets emerged citing deliberate attempts to erase and minimize her role and stature as a liberation leader by referring to her as “anti-apartheid campaigner”, “anti-apartheid crusader”,“anti-apartheid stalwart”, Nelson Mandela’s ex-wife and anti-apartheid activist”, “flawed heroine”, among others.

One cannot help but wonder why Madikizela-Mandela was loved by many but also detested,by some, perhaps in equal measure. As I reflect upon the myriad ways Madikizela-Mandela has been portrayed by different people, the Social Psychology concept of ‘person perception’ that explores how we form impressions of one another comes to mind.

Social Psychologists believe that ‘person perception’ attributes various “mental processes” to how we form impressions of one another and how these, influence subsequent conclusions, judgements we make about people, and the way we interact with them. iresearchnet.com indicates that forming impressions of other people can “occur indirectly and requires inferring information about a person based on observations of behaviors or based on second-hand information.” It also explains that we can form impressions of other people “more directly and require little more than seeing another person.” The website concludes that direct and indirect types of person perception “provide a foundation from which subsequent judgments are formed and subsequent interactions are shaped”.

When we form our impressions of others through “indirect person perception” our “general perception of a person is the product of inference”. This means that “many of the personal attributes” that “we may want to know about another person (e.g., whether the person is loyal, honest, or contemptible) are not directly observable”.

These “attributes or traits must be discerned—either from observing the person’s actions (actually watching the person behave in a loyal or honest manner) or from interpreting information provided by a third party (what a roommate conveys about a person or what the experimenter reveals)”.

According to iresearchnet.com, “personal attributes that observers notice about another person need not be inferred because they are directly observable and are therefore noted immediately”. These personal attributes include categorical judgments about other people such as their sex, race, and age. This process prompts the questions; “What sex? What race? and How old?” are “likely to be among the first impressions that observers form of others”.

Perceptions: A Journey

Reflection on what informs my personal impressions, perceptions and conclusions about Mandikizela-Mandela find root in a journey that started during my teenage years where my initial knowledge of her was simply, Nelson Mandela’s wife, based on what I read in the media.

As I matured into young adulthood and developed interests in social justice, my evolving consciousness enabled me to grow my understanding beyond my teenage view of her as Nelson Mandela’s wife. Since I did not know Madikizela-Mandela, personally, to form personal impressions of her through observation, to for instance infer whether she was loyal or honest, I therefore utilized “indirect person perception” to form impressions of her based on “information proved by a third party” – the media.

It is therefore important that I continue reflecting upon the validity of the third-party information that has influenced some of my perceptions of her therefore broadening the scope of sources that corroborate or challenge the ones I have relied on in the past. As an outsider to South Africa it is also important that I listen to voices from within on this matter, but I cannot make assumptions that every voice that I hear from South Africa will be accurate.

Most importantly, I must also seek to learn what Mandikizela-Mandela says about her life and contributions to the liberation struggle, in her own words. Her book 491 Days: Prisoner Number 1323/69, a diary of her days in solitary confinement for 18 months, the documentary film Winnie as well as Alf Kumalo and Sukiswa Sukiswa Wanner’s book 8115: A Prisoner’s Home are great sources to add to your reading/viewing list.

My reflections have helped me pay attention to how stereotypes and cultural assumptions we hold related to the “direct person perception” dimensions of race, sex and gender can influence our impressions of one another. These intertwine within an interplay of culture and the dynamics of power.

The way power is expressed and experienced from a race, culture and gender perspective can influence our perceptions of one another. Afua Hirsch explored some aspects of how racial bias and sexism have shown up in some obituaries, “The death of Madikizela-Mandela is another opportunity to choose between a narrative of white supremacy and the one that overthrew it. If the media coverage of her death is anything to go by, this is, apparently, a deeply controversial choice”.

Patricia Hill Collins’ “domains-of-power heuristic” offers a compelling framework for analyzing power that considers the complexity of intersectionality. Collins posited, “power relations can be analyzed both via their mutual construction, for example, of racism and sexism as intersecting oppressions, as well as across domains of power, namely structural, disciplinary, cultural and interpersonal”.

According to Collins, the structural domain of power consists of “public policies that organize and regulate the social institutions such as “banks, insurance companies, police departments, the real estate industry, schools, stores, restaurants, hospitals and governmental agencies”. Madikizela-Mandela’s struggle for justice touched on all these areas of power that discriminated against Black and Brown South Africans.The questions become; do I believe that all people regardless of race or gender have a right to equal access and opportunity to these critical resources, social services and facilities that help foster basic human dignity, nourishment, wellbeing and development? How do my beliefs and assumptions on this matter influence my perception of Madikizela-Mandela as a Black woman and leader who defended these rights?

Collins argued that “when people use the rules and regulations of everyday life and public policy to uphold social hierarchy or challenge it, their agency and actions shape the disciplinary domain of power”. Madikizela-Mandela resisted the apartheid system’s rules, regulations and public policies that discriminated against Black and Brown South Africans. The questions become; do I believe in or challenge the idea that all people, regardless of race or gender have a right to be protected from rules, regulations and public policies that uphold social hierarchy? How do my beliefs and assumptions on this matter influence my perception of Madikizela-Mandela as a Black woman and leader who championed this cause?

Collins further explained, “the cultural domain of power refers to social institutions and practices that produce the hegemonic ideas that justify social inequalities as well as counter-hegemonic ideas criticize unjust social relations. Through traditional and social media, journalism, and school curriculums, the cultural domain constructs representations, ideas and ideologies about social inequality”.

“Liberation is thus a childbirth, and a painful one.
The man or woman who emerges is a new person,
viable only as the oppressor-oppressed contradiction
is superseded by the humanization of all people.
…the solution of this contradiction
is born in the labor which brings into the world this new being:
no longer oppressor nor longer oppressed,
but human in the process of achieving freedom”.
Paulo Freire
 

Madikizela-Mandela challenged systems of domination that propagated social inequalities through an apartheid-inspired educational system, media, ideas and ideologies that include patriarchy which positioned women as less than, less deserving of opportunities, resources, being treated with dignity and respect and judged on a different and higher set of standards than men. Zukiswa Wanner reminded us, “Our patriarchal and puritanical brains, as men and women, relegated her to an ex-wife who cheated on our revered Saint Nelson while he was in prison.”

South African women have come out in large numbers to defend Madikizela-Mandela’s legacy in what they perceive as attempts to erase her contributions to the liberation struggle. As a Black woman and liberation leader who opposed the apartheid system and all it stood for, relentlessly, she suffered at the hands a sophisticated and vicious Security Branch smear campaign that as Shannon Ehbrahim reported,was designed to “discredit and isolate her”.

The questions become; do I believe in or challenge the social institutions and practices that produce ideas and ideologies of domination “that justify social inequalities”? How do my beliefs and assumptions on this matter influence my perceptions of Madikizela-Mandela as a Black woman and leader who criticized “social institutions and practices which produced hegemonic ideas that justified social inequalities?

Collins argued that the “interpersonal domain of power encompasses the myriad experiences that individuals have within intersecting oppressions”. Madikizela-Mandela and others in South African suffered the indignities of apartheid. Many of them lost their lives in the struggle for freedom and justice. While my goal isn’t to portray Madikizela-Mandela as a helpless victim of apartheid power transgressions because she was a powerful force to contend with, along with others, she was jailed, banned, harassed, detained, held incommunicado in solitary confinement, often denied food, basic feminine sanitary items and at times denied access to the medical attention and legal counsel she needed.

The questions become; do I believe in or challenge the dehumanizing acts of brutality that were unleashed upon Madikizela-Mandela and others by the apartheid regime’s power excesses? How do my beliefs and assumptions on this matter influence my perceptions of Madikizela-Mandela as a Black woman and leader who along with others, suffered the apartheid regime’s power excesses?

“A new world will be born not by those who
stand at a distance with their arms folded, but by those who are in the arena,
whose garments are torn by storms and whose bodies are maimed in the course of contest. Honour belongs to those who never forsake the truth even when things seem dark and grim, who try over and over again, who are never discouraged by insults, humiliation and even defeat”
.
Nelson Mandela in a letter to Winnie Mandela, June 23, 1969

 We know that Madikizela-Mandela endured the yoke and brunt of the dehumanizing whip of apartheid, stoutly, and in all her humanness as an act of unapologetic resistance, a site of undying hope bringing forth a new world from the abyss of a protracted and odious struggle to uphold human dignity.

Leading social change requires leaders who show up. Showing up is a critical first task and test for leaders of change. A leader who shows up can recruit and inspire others to also show up in support of the desired change. The social change process requires people who show up and are not afraid to stand up to be counted. The social change process is messy and unpredictable. While it requires planning, strategies, structure, resources and action, the leader and the people must understand that it is emergent. Madikizela-Mandela’s commitment to the cause of social justice was undeniable because she showed up and did so, authentically.

I use the term authenticity here to mean she was committed to showing up as herself. She was not afraid to be herself even in the face and risk of physical and emotional injury to her person. She led change through action and unwavering courage while acknowledging her full humanness as she suffered the pain of the struggle. Her passion to serve her people while showing up, authentically and unapologetically, defined her leadership.

We were uncomfortable with a person who lived by her own rules
and refused to reconcile and join the mythical rainbow nation that we wanted to believe in.
She con­tinued to live in her Orlando West home. She continued to attend functions,
when she wanted to at a time it suited her, and she contin­ued being unapologetic
about who she was because she knew — though we chose to ignore it — she suffered to get South Africa to its present state.
Zukiswa Wanner

Leading social change through action means navigating outside the comforts and context of ‘armchair revolution’ but within largely invisible peripheries, trenches and valleys that know the pain and suffering of the oppressed. Madikizela-Mandela did this and for the long haul, despite the heavy hand of a dehumanizing apartheid machinery.

We were all caught up in that war of liberation
Self no longer mattered, country came first.

When they were incarcerated, on hindsight, they looked after our
leaders because from then on, the violence in the country was untold.

We were the cannon fodder.

We were the foot soldiers

We were vulnerable

We were exposed to the viciousness of apartheid.

Winnie Madikizela-Mandela

One may wonder, what inspired Madikizela-Mandela, a young mother in her twenties to join the liberation struggle?

“To surmount the situation of oppression, people must first critically recognize its causes, so that through transforming action they can create a new situation, one which makes possible the pursuit of a fuller humanity”.
Paulo Freire

Through her leadership, Madikizela-Mandela drew the world’s attention to the situation in South Africa and this could not have been achieved through lip service. The passion and courage she embodied were grounded in the values that she held dear. Her personal conviction and commitment to the values of racial, socioeconomic, political justice and equality, fairness and democracy were the path that illuminated possibilities and action for liberation, dignity and a “fuller humanity” (Freire) for all people in South Africa.

“My flesh is nothing more than sea shells washed up to the coast
by heavy waves of stormy political seas, my soul like the sea will always be there.
I would have been filled with shame if I was unable to get up and defend those ideals (that) my heroes and our patriots have sacrificed their lives for”.
Winnie Mandela in a Letter to Nelson Mandela, March 08, 1970

I end my reflections noting that paying tribute to Madikizela-Mandela by acknowledging her great contributions to humanity through her leadership for social justice does not mean that we chose to ignore her humanness and humanity. She was as human as each one of us. She did what she did, when she did and with what she had. We are grateful.

Only she, walked in the shoes she wore and those of us who have no idea what it was like to live and stay alive in what Madikizela-Mandela called a “war of liberation”, can only imagine.

I choose to pay more attention and listen to the voices of my South African sisters who have a deeper grasp of who Madikizela-Mandela was. I hold them in care. Deeply grateful to ‘Dada’ Zukiswa Wanner who has been kind and generous by sharing her insights on Mama #Winnie.

In attacking Madikizela-Mandela, MondliMakhanya in an article
this past Sunday attacks all of us who love our people and our country unstintingly. He attacks all of us who are human and fallible because humanity is about the possibility of fallibility.

He attacks all those of us who hold other black people with respect,
whatever our disagreements with them.

Makhanya attacks us all because #WeAreAllWinnieMandela.

 And to uMam’Winnie, as the chil­dren would say, we did you dirty.

May we be kinder to you in death and may we learn to protect each other and
our country to ensure that all South Africans are treated with the dignity that they deserve.
With the dignity we did not afford you.

Hamba kahle, mkhonto.

Zukiswa Wanner
‘No love lost: What Winnie hate says about us’

 

Rest in Power Departed Elder
Nomzamo Winifred ZanyiweMadikizela-Mandela

 

Ref
Freire, P. (2000). Pedagogy of the oppressed. Bloomsbury Academic; 30th Anniversary Edition

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Kerubo Abuya is an independent organizational, leadership development, leading change and cultural transformation strategy and action scholar-practitioner. She is a hopeful dreamer and believer in the dignity and emergence of endless possibilities in co-creating cultures where every human being can flourish.

Reflections

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.

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Gold and Gemstone Policy in KenyA: The Devil Is in the Detail
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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.

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Reflections

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.

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Sustainability Is Key in the Management of Natural Resources
Photo: Unsplash/Sebastian Pichler
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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.

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Reflections

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.

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Time To Address Compensation and Resettlement Issues in Kenya’s Mining Sector
Photo: Unsplash/Japhet Khendlo
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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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