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Reflections

The Revolution Shall Not Be Instagrammed

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The Revolution Shall Not Be Instagrammed
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I was born in March of 1989, just two years before the term millennial was coined by William Strauss and Neil Howe in 1991, three years before Bill Clinton, the neoliberal icon, took over the most powerful presidency on earth and right on the throes of agitation for a multiparty democracy in Kenya.

I was shipped off to boarding school at 11 years which meant I became a young, distant observer to the events and transitions of life both at the family, and national level including the rise of rural modernity in the early 2000s, inspired by the power of the motorbike, the money transfer platform MPESA, and the changing political dynamics.

One midmorning in late August 1996, then a lower primary school kid at Kitale Union Primary School, I had my premature induction into the murky world of Kenyan politics via the hordes of retrenched industrial workers huddled in small groups, whispering, biting their lower lips, most of them looking over their shoulders.

Kitale town, then, was simply a one-main-street, end-of-the-rail town taped together by two dozen (mostly Indian owned) shops, several colonial era schools, the selfless public housing and the imposing structures of the traditional mainline churches like AIC, Roman Catholic, and PCEA. In the subsequent years, after the massive retrenchment, the once promising town sunk into a decaying ghost as the basic economic sustenance of the town; the parastatals like KCC ( Kenya Co-operative Creameries), NCPB (National Cereals and Produce Board), Kenya Seed and the large scale ADC (Agricultural Development Complexes) were downsized, collapsed or privatized thanks to the infamous Structural Adjustment program(SAP).

In one major swoop, the corporations that held the town together had been massively shaken, irrevocably altering the socioeconomic soul of the town. World Bank, IMF and other catchphrases that either I cannot recall or could not comprehend then, peppered their conversations. But what set the narrative on a new lane was a conversation one evening between my mom and my uncle, Barnabas. On and on, they would list the names of friends and family who had lost their sustenance due to the economic and political mess. Then, my uncle offhandedly said, ‘huyu jamaa ameharibu maneno’  in reference to a certain powerful politician. My then young, blissful, unthinking mind parroted back.’ Huyo ni mbaya.’ Their reaction was swift and unnerving. Even as a kid, the angst in their adult eyes was something they could not for a moment hide from me.

My then young mind could not wrap itself around the complex issues and the layers of emotions that defined the perils of the time. It must have been flinching for them to hear the spirit of the time parroted by a young soul and stripped of the euphemisms, artificiality and colloquiallity of adult conversation. What was however clear, was that I had mentioned something that for reasons I could not understand then I was not supposed to have uttered.

The 2003 euphoria found me, then a spry young 14 years old high school student, in the throes of what would have this country ranked as having one of the most optimistic citizenry in the world. The Kibaki regime, coming in at the tail end of the Moi regime to upstage Moi’s choice of a young-barely known-son of the first president, was a political earthquake unlikely to be recreated ever again.

Unfortunately, this high noon of political bliss would fizzle out fast, as the coalition would soon run into organizational trouble just after the demise of the then Vice President, Kijana Wamalwa who till then remained the most powerful politician from my hometown, Kitale. Kibaki would dishonour the NARC MoU as he increasingly retreated to his ethnic corner and darkened his legacy by resuscitating the Mt. Kenya Mafia. These MKM who had been torpedoed by Njonjo in 1978 when he gave Moi the presidency found a new lease of life in Kibaki post-2003 presidency.

Their primitive accumulation of wealth, ethnic superiority complex and contempt for anyone not from the slopes of Mt. Kenya is a terrible legacy that should have never been allowed to return into our national discourse. Unfortunately, ideological privilege combined with a siege mentality of their supporters had allowed them to establish a mal-adaptive ethno-supremacist regime. By the time the 2005 referendum came around, they had established an us-vs-them narrative and Uthamakism made its way back into our lexicon and corridors of power.

I have always been clear that Uthamakism is a monarchical structure that operates as gangland style territorialism primarily through state capture, ethnic bigotry, as well as tentacle and skewed economic interests. At this point, their self-interest is so intertwined with the state’s interests that it is virtually impossible to oust them. This Uthamakism is the Kenyan version of deep state that will always be more than willing to subvert democracy when it goes against their interests, biases, and preferences.

Even the next major political event in Kenya-the 2010 Constitution inauguration-could not pack enough patriotic punch to inspire a deeply frayed nation whose conscience had further been burdened by the 2007 skirmishes that intensely tore apart the illusion of the island of peace long peddled through the 90s.

I left campus in 2012 and joined the job market right at the tail end of the Kibakinomics economic upswing. The boom-a combination of higher education boom, real estate, banking, telecoms, money transfer and the revolutionary motorbikes- had for a moment set this nation on a path to seeming prosperity. In retrospect it did not occur to me just how bad the labor market was, given that I would land my first job 4 months after leaving campus. My fellow millennials have fared-and continue to fare-worse than I could imagine. Like everyone else in my generation, thanks to a confluence of forces-some decades in the making, we (millennials) are now facing the scariest financial future of any generation and just like my peers, I am finding it increasingly difficult not to be scared about the future, anxious about the present, and angry at the failings of the older generations.

I am 29 years old, a middle millennial if you will-and for the last five years since I left campus- a period in which I have been a staffer in a modern, centre-right church, ran a couple of creative gigs, written two books, and reinvented myself as a public scholar and a commercial writer-the labour market has continued to worsen to a full blown crisis.

In those six years, I’ve been waiting to start adulting, just like my father did, yet unlike him as I stare at the proverbial third floor I am increasingly aware of the power of societal outcomes to shape personal fortune especially as regards the five markers of adulting. As a millennial I have well-founded respect for context even as I weigh myself against him, who at my current age, 29 years, bore me as his 3rd child, besides having just bought a plot of land and had already risen to the rank of an acting head teacher.

Millennials, unless otherwise stated, is a term that refers to anyone born between 1982 and 2004 and if editorials are anything to go by, then we are considered a disappointment.  We have all heard the narrative, millennials are entitled, tech savvy, easily bored, flighty and have failed in the five common markers of adulting – finishing school, getting a job, marrying, raising a family and saving for the future. Honestly in these five benchmarks I have got a mixed score and occasionally I’ve marinated in private shame thanks to the pervasive myth of personal effort alone in shaping life outcomes as peddled by the prosperity gospel on the religious side and the secularist positive thinking movement on the other hand.

The millennial bashing script often reads like capitalism’s disappointment that we did not turn into the reckless consumer cluster that they anticipated we will be when they branded us in 1991. The millennial narrative-for the most part-ignores the existential pain of being young in a flailing society, and the attendant youthful anxiety, grief, struggle and fears while amplifying the trivial and dehumanizing aspects of generational clustering such as tastes, habits and preferences.

Unfortunately these generalizations, just like those of any other generational group fails to account for wide variations in individual and group-wide dynamics. Being a millennial also means having to constantly remind Gen X and Boomers that contrary to clichés about us, a vast majority of our peers have not gone to university, do not get paying gigs regularly, and cannot depend on our folks. Only a tiny minority fit these peddled stereotypes.

What defines us is not Java Cafe, Instagram, or any sense of entitlement. It’s UNCERTAINTY.

What is a Generation?

The assumption inherent in my reflections here is that a generation is mostly defined by biological comradeship built on small age variations. However in ‘the problem of generations’ sociologist Karl Mannheim, in 1927, pointed out that a generation is something like a social class: an objective, structuring social fact. If the objective aspects of class were economic, those of generations were biological. However mere biological coincidences are not enough to form a generation. A certain age cluster born around the same time only becomes a generation when they develop an actual peer bond thanks to a specific political, moral, spiritual, economic, geographical or social event that knits them together into largely observable mind-sets and worldviews.

Within such contextualization, I would then say that the Kenyan Gen X (45-60) only acted as a generation between 1990-2002 when the SAPS united them in sedative leisure of booze, longing for emigration abroad, sex and despondency. However such a short span of generation formation (whose effects were mitigated by the helicopter nation-state parenting of Kenya by the United States through Bretton Woods institutions) wasn’t enough to forment a generational bond. By the year 2000 as the economic boom kicked in, the 90s kids went separate ways and their process of generation formation got torpedoed. That is why many of them, drunken with hyper-individualism and failure to think generationally, are busy screwing the economy through privatization and the neoliberal onslaught.

For we millennials, our ‘generation formation’, is taking place in the crucible of a flailing global finance at the end of capitalism as we’ve known it, a period that has us trapped in eternal adultescence in which we are no longer kids and neither do we fully possess the social markers of adulthood. And the circumstances we live in are direr than most people realize. All around us the social safety nets-education, housing, and health care-have now become financially unattainable even as the paths to respectable financial existence are becoming expensive, illegal or hoarded.

For we millennials, there are many living in poverty and struggle even as more are at risk of falling into despair. This is why nations invent welfare plans and firm-up their social safety nets. In healthy, functional societies, quality, affordable public social services such as water, sanitation, security, healthcare, and education are considered human rights not mere market products. They are supposed to be the paths that can help kids, irrespective of their circumstance of birth to transcend family status and become upwardly mobile.

The first inkling that we are living in the ‘new 90s’ defined by stagnating economy, stunted growth and rampant corruption would come a few months after I quit my first job as a church staffer, at the tail end of 2014. Most of the vacancy applications that I sent out would go unresponded to even without a mere ‘well received’ feedback. And the statistics were there to back me up-albeit 3 years later. According to a December 2017 job report, 53% of those polled were unemployed, with 86% of the unemployed being between 18-34 years. The job market is depressing and despite all this talk about the internet revolution and gigs, if nothing changes, my generation will walk into our 40 and 50s with a career consisting of a long list of unrelated low-skilled, low-wage, short-term, temp jobs, living financially insecure lives and not qualified for any job particular. It is no longer strange to hear of those who have not landed a job, three even five years, after leaving campus.

Around the same period, that the report was released I ran a viral Twitter thread dubbed #UnemploymetDisasterKe that garnered 736k impressions within 9 days. Employers would write to me in private about how they no longer advertise the vacancies because of the massive deluge of CVs that would come in. One employer mentioned how he got 2045 CVs for 15 positions while another mentioned receiving 711 CVs for 7 clerical positions. It’s a numbers game and there just aren’t enough quality jobs for millennials out here.

When it comes to schooling, currently, barely 10% of those who finish high school are able to join tertiary institutions. This means roughly half a million Kenyans wind up in the job market, young, inexperienced and not properly schooled. Meanwhile, an estimated 900 000 Kenyans turn 18 years every year. Tragically, the current fascist regime is well invested in destroying the already bust education economy, a mess reflected in the fact that university enrolment has dropped by a third in 2018.

Meanwhile, at the workplaces around the country, the scourge of managerialism that treats supervisory and management skills as superior and thus better remunerated than technical skills has dis-incentivized millennials from joining -Technical, Vocational and Education and Training (TVET) institutions in favour of the funneled University education.

Quality education, one of the most viable social safety nets for the poor, has been yanked and compromised, privatized and priced out of reach of many in the society. This generation not only has to deal with a failing labour market, they are in turn walking into the future as largely uneducated-in a society in which education is a strong predictor of good incomes.

To be a millennial in this country is to be acquainted with lack, plagued by economic insecurity, and to be eternally haunted by the prospects of poverty and as Michael Hobbes, a millennial writer opines, becoming poor is not an event. It is a process. Like a plane crash, poverty is rarely caused by one thing going wrong. Usually, it is a series of misfortunes—a job loss, then a car accident, then an eviction—that interact and compound.

One aspect of millennial life that we rarely look into is just how much it matters what accidental advantages one accumulates at birth i.e. postcode lottery. The underlying force is the ever ignored role of inherited (dis)advantages in which, being born into a stable, well-to-do family avails certain nutritional, economic, financial, and academic advantages that gives you a leg up in the race of life. It is the nature of life dynamics that in a tough economy with dwindling opportunities, children born into abundance or as Warren Buffet calls them ‘the lucky sperm club’ have a surer head start than ever.

Add the current rigged economy, unbelievable corruption and the floundering nation-state, and there’s no doubt that we are walking into a period where, while there still exists accelerating advantages for the upper class millennials, the middle class millennials have a tricky dance with fate and risk downward mobility, while the poor millennials have to face the reality of compounding disadvantages.

To have an undergraduate degree in this country, at this point, means to be among the 700, 000 degreed Kenyans while a Master’s degree puts you further up in the apex of society given that as of 2014 only 40,173 students enrolled in master’s programmes and 4,394 in PhD courses. Even then a degree does not protect you from the context of entry into adult life, given that it matters in what kind of a public environment you turn into adulthood. Turning into a young adult in the middle of a boom like the 99-2010 upswing avails massive job and investment opportunities, which comes with the potential for saving and accumulation of economic and professional advantages in yours 20s and 30s that often compounds over a lifetime. Conversely, turning into adulthood in post-2012 Kenya-like I did-has meant that the advantages I gained as the son of rural, professional parents in a nominally catholic family at birth were neutralized by the downward swing in the labour market at the throes of adulthood.

The reason, we millennials seem stuck in some sort of extended adolescence is because we are trying to succeed within a system that no longer has all the pipelines that ushered youths into adulthood. The rungs needed to finance an education, get a respectable job with a decent salary, then raise a family have been yanked away, the rules have changed, and now we are left playing a game that is virtually designed to make us lose.

Not only are most of my peers jobless or underemployed, we are getting jobs later, we start earning less money, we are not able to save thanks to sky-high bills, we accumulate more loans from shylocks to stay afloat, buying a home is only possible for a tiny, negligible minority of millennials and unless the current system gives way, few of us millennials will survive the onslaught. Meanwhile, the current regime has added over $20 billion debt burden on our society within 5 years, in the absence of a major crisis like civil war or natural disaster – and with little to show for it, turning us into a multi-decade Creditopolis.

What are our options then? We millennials have legitimate and genuine grievance and methods of expressing displeasure but we have not conjoined the two with an ideology like our peers who run the revolutionary sang culture among Chinese millennials, the Corbyn populism among the UK millennials, Geracao a Rasca among the Portuguese millennials, Juvetud Sin Futuro in Spain and a whole host of other millennial ideological movements around the world who are framing their struggle as class-based and generational.

There are three illusions that prevent many Kenyan millennials from organizing: one, is, this is temporary, we’ll ride it out: two, I’ll prosper and leave all other millennial strugglers behind: three, I’m the only one caught in this mess, so it’s my private shame.  Truth is, study after study show you are wrong on the first count, have minimal chances of achieving the second, and you would be surprised how many of us are out here stuck in the third.

Given the skewed, nepotistic, violent, and predatory nature of the current system, the only option left for us Kenyan millennials is to imitate our peers around the world and set in motion a MILLENIAL REVOLUTION otherwise we are toast. And it’s the least we are ENTITLED to.

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Darius Okolla is a researcher based in Nairobi.

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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