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Errant Natives, Submissive Obsequious Comprador and the Question of Imperialism

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Errant Natives, Submissive Obsequious Comprador and the Question of Imperialism
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The illusion of sovereignty and state arising out of territories created in 1885 is fast disintegrating. The false political medium in Africa modelled after the Westphalian nation-state which Zbigniew Brzezinski aptly described as “pseudo-states”, is undergoing Samual Huntington’s political decay. In this case a situation where social-political awareness and activism has evolved at a pace beyond the ability of the colonial institutional order’s ability to adapt.

Natives under the delusion of rights that they presumed they had as a natural outcome of the false liberation from colonialism, make untenable demands on the imperial order. These demands consequently lead to fracture of the illusion citizenship and statehood. As the political medium has matured and aged natives’ attempts to align what they have been taught in school and what they instinctively believe to be the reality they exist in, is testing the fabric of the medium to it’s limits.

This was best exemplified by the March 26th 2017 Jomo Kenyatta International Airport incident in which the Kenya Government removed a native born lawyer by the name of Miguna Miguna to Canada. Miguna Miguna was born in the Kenya territory but had acquired Canadian citizenship. Simply, a man was expelled from his country of birth and ethnic heritage, not by his people but by the instrument of colonial imperialism that had long since been presumed defunct.

The moment revealed the incorporeal prison grid that is the Westphalian nation-state geopolitical system. For both the ignorant and informed the Miguna Miguna “deportation” debacle exposed fundamental contradictions that are intrinsic to the Westphalian nation-state system.

His courageous demand to be allowed to re-enter his country of birth without passport validation created a clash that spewed to the surface the rotten core of colonial imperialist thoughts carried by a native elite whose vacuity was now beyond the political but also human.

To the south, another native, the founder and current leader of the Economic Freedom Fighters Party – Julius Malema threatens the illusion of the Rainbow Nation. Challenging the South African independence fraud which granted “political freedom” without release of the reigns of control of the economy, yet another falsity of such ontological improbability, it’s mere existence is testament to the ideological bankruptcy of natives of the African continent.

“I was born here! This is my country of birth!” shouted Miguna Miguna

While standing at the doorway to the plane that was meant to fly him to any destination but his home country.

A native, begging for jus soli (Birthright citizenship).

Native. Jus Soli.

The irony of our dystopic reality.

“I am a Kenyan!”

Declared Miguna Miguna demanding jus civile in a state of colonus, intending jus naturale, while in an actual state of jus gentium. Ignorantly claiming jus civile where no state even exists.

“I am JaLuo”, directed at the JoLuo Ruoth would have been more conceptually consistent with jus civile, though even more impotent. Given in our coloniality, we have obsequiously embraced inane oxymoron like “negative ethnicity”, at once de-legitimizing our own “larger families” and compelling submission to colonial abstractions like “Kenya” which are defined and redefined at will by the imperialists, as we witnessed in Sudan and other regions of the world. An example being the current re-engineering of identities in the Middle East through the Greater Middle East Initiative GMEI which is re-mapping the old and worn genocidal British-French Sykes-Picot colonial order of the 20th Century in America’s sociopathic imperial image. The cry “I am JaLuo” would sadly not only have been impotent but also politically incorrect.

One is only allowed to identify with the identity imposed by the imperial colonialists, any other is met with ridicule at best, and the potential danger of political lynching for “tribalism” by fellow serfs, at worst. No-one dare shout “I am ndorobo!”, on an international stage, where when Phil Neville says “I am British and Proud”. His ethnicity is not only acceptable but is also recognized institutionally and procedurally. White ethnic identity has citizenship, in fact sufficient jus civile to cater for any whom the white power structure would deign to grant use of their ethnicity i.e. an Arab and Somali can say they are British without fear of contradiction while the reverse would be preposterous. The small “n” in “I am ndorobo!” and the capital “B” in “I am British and Proud” is deliberate.

With this simple “sleight of hand”, the imperialists can enjoy citizenship in expropriated lands where they do not belong. They have created political aberrations like “kenya”, which enable contradictions that sustain a system that keeps the native inhabitants of colonies and occupied territories from enjoying the rights of citizenship in the suzerain’s homeland, while allowing the imperial citizen to enjoy rights in the occupied land equivalent to those in his own.

The colonial status and identity structure Prof. Mahmood Mamdani effectively described is based on the melanin phenotype. Rights belong strictly to low melanin individuals who look pink but are termed white and defined as imperial citizens, they are governed by Civil law. This superstructure is also occupied by a sub-class of individuals with more hyper-activated melanin, termed as brown. Though this subject-class occupy the upper strata governed by Civil law, they exist below the citizens and only have privileges. Natives occupy the substructure as a large muddy brown to black muck that has neither rights nor privileges and exist outside the remit of Civil law. The implications of which are, for example, murder does not apply when it is of a black (notice the absence of the term person) by a white person.

Simply put, the right Miguna Miguna demanded was a right of being a Luo to the Luo Nation. He was demanding this natural right from the un-natural entity of a colony which itself masquerades as a State and therefore has in essence no citizenship to offer, anyone.

“I am a Kenyan!”

Cried Miguna Miguna for the umpteenth time to any and all who would listen, a peregrini (alien), now out of his depth desperately using any and all means of identity available jus coloni (Serf; status of tenant farmer in Rome between freedom and slavery), jus soli (Birhtright citizenship) in order to be granted access back in to the “Kenya” province of the Imperial Empire, not knowing neither civile nor gentium exist for the natives.

“I am a Kenyan!”

Demanded Miguna Miguna the house negro, through the transparent airport departure lounge door to excited members of the Ministry of Truth in a bizarre moment loaded with dramatic scenes and contradictions that leaped back and forth between shakesperean drama and orwellian dystopia.

He flashed his chattel tag, the infamous kipande.

Yes, he was definitely one us, a slave, he belonged in our fields.

No longer a resistance “General”?

The curse of native cyclopia. Given yet to “form” “mind”, “essence” makes no “matter”.

He demanded to be allowed back in to the field. He had realized, that though being a field negro was wretched, being amongst his fellow slaves consolidated his identity and reinforced his esteem and sense of self, compared to living in the lap of the master where there was all comfort, but total deontological corrosion.

Why was he now seemingly rejecting the safety and security of his master’s house? In exchange for what we dare ask? The negro had tasted life. The field promised fame, power, relevance he could never enjoy in the master’s house, which though comfortable was cold. Nothing beyond the comfort was real. Man was not created to live in the comfort of another man’s house. It is not natural, not for any Man, only for a slave.

The fields though harsh are real, hardship strips masks, revealing us to ourselves, giving rise to struggle, struggle to meaning, meaning to purpose, purpose to life.

The life the negro had tasted.

“I am a Lawyer!”

Exclaimed the plebeian in patrician outrage. Shocked by the treatment meted out on him by fellow members of his own underclass.

Neither being “born here” (wherever “here” is), nor being a Lawyer, nor being “Kenyan” entitled the poor agitator to anything. In actual fact, being “a Kenyan” his greatest defence actually qualified him for the greatest subjugation. As being a Kenyan unlike being a Somali or a German, was the actual slavery.

According to the Kenya Gazette Supplement No. 93 of 7th December 1960 the term “Kenya” means, the colony and Protectorate of Kenya Crown Land.

What is the “Kenya Crown Land”? It rises from the Crown Lands Ordinance (C.L.O) of 1902.

To be “Kenyan” is to be chattel property of the Crown, to be “proudly Kenyan” is to be proudly chattel property of the Crown.

“I am undocumented!”

 Protested Miguna Miguna. Imagine that; A world in which to be undocumented is to be institutionally non-existent. But close scrutiny reveals that “some animals are more equal than others”, as the “Citizens” of the world do not need to prove their right to re-enter their countries using Passports. Reaffirming the fact that the native has no systemic rights in the imperial order, even in his native land of birth.

 “I do not have status!”

Shouted Miguna Miguna at the highly professional pilot. “I have no status in Dubai!” he cried very legitimately. As landing in Dubai without immigration status could expose him to unnecessary harrasment, potential prosecution and even temporary incarceration.

This, for the first time was serendipitously correct in literal terms, and in Dubai he would have been treated exactly as such, a runaway slave.

Without the chattel tag in form of passport or identity card, the native literally has no status, anywhere. While the Queen of England does not require a passport to travel anywhere, not even his President escapes this procedural requirement essentially exhibiting the pecking order even at Head of State level. As for the native he is no less a slave now than he was a century and a half ago, secular imperialism has only evolved an incorporeal yoke for him.

Guns mean nothing! Guns are not issues!” sneered Miguna Miguna disdainfully…

while standing at the barrel end of the insurmountable power of the loaded gun of imperium, he inadvertently revealed why he and his ilk are damned to eternal slavery to men.

Guns are key. Gun ownership is organically related to political agency. Gun ownership in the sense of right to arms is fundamentally integral to Citizenship. The “Gun control” controversy the World has witnessed in America is not about the civilian attacks conducted by deranged gunmen that the main stream media so loves to amplify. It is about political agency. The American people having an instinctive sense of the true essence of slavery having been both subjects and slave owners, and now FREE MEN. Americans deeply understand that “Gun regulation” is political subjugation.

Arms and guardianship were defining characteristics of Citizenship even in Ancient Greece and Sparta. Only chattel slaves were not allowed to own arms then, guns now. Natives. If one can take a moment to flash back to the “Westgate”incident. The Asians who out of nowhere filled the parking lot, for local citizenry, bore a strange arms configuration – Semi-Automatic and Automatic Weapons. No organized group of native civilians is known to be armed in this way, not even in the Private Security Companies. Begging the question, how? Why?

Prof. Mahmood Mamdani in his treatise on Citizenship equips us with the tools to understand the colonial system. Once clearly understood it reveals the existing socio-political identity and dispensation to be simply a paint job, cosmetic makeover of the imperial system established in 1885.

To recap, the top rung is occupied by individuals like Tom Chomondeley, the great grandson of the 3rd Baron Delamere, who has the three vital characteristics necessary to citizenship under Secular Imperialism; very low melanin, property ownership and guns. The bizarre drama all witnessed where then “state employee” Attorney General Amos Wako, flew “state employee” Director of Public Prosecutions to Nakuru NOT to initiate but to terminate the prosecution of Tom Chomondeley, in a case where he was being charged with killing Samson Ole Sisina, a state employee!? This conundrum is only effectively explained by Prof. Mahmood Mamdani’s classic treatise “Citizen And Subject” which revealed the real imperial writ, that has been insidiously cosmetically masked by a bankrupt native elite using a false constitutional order. A white man killed a native, a legal non-person. The promulgated constitution of the territory did not and does not apply to imperial citizens. The constitution is then in reality the amalgamation of customary norms of natives into a social contract strictly for natives. Scaled to state level where the property is “oil and minerals” and the guns are “nuclear weapons”, one finds an analogically equivalent order, which qualifies and enables “white” nation ownership rights to all the oil and minerals on earth and possession of Nuclear weapons. The Nuclear Non-Proliferation Treaty is the demarcation line between Civil States and native territories. Thus the great political effort to de-nuclearise the East.

The materialist nature of Secular Democracy compels a logic of power as the criterion of rule i.e. “Might makes Right”. Citizens for this reason must guarantee their rights from the sovereign, their rights are not guaranteed by the Sovereign. The right to ownership of arms is not manifest in the “Firearms license” local drug dealers, elected natives and other petty bourgeois who like flashing at restaurants, when not terrorising family members and competing lovers with.

Gun ownership is epitomized by Cliven Bundy. It is manifest in Cliven Bundy’s ability to exercise defensive power against an organized expropriator in the form of the United States rogue government. The legal dispute between Cliven Bundy and the United States Federal Government is not the primary issue of importance. Of concern is how the armed standoff between Cliven Bundy’s armed militia and armed agents of the United States Government Bureau of Land Management between April 5th 2014 and April 12th 2014, ended with a United States Government standing down.

Why did the United States Government hesitate? Why not another Waco? This is a government which is infamous for love of overkill, be it by conventional, nuclear, chemical or biological weapons means. Death of innocents is no matter for the United States Government, what about an armed militia?

One has to understand how the white horizontal rungs intersect with the columns of the global property rights regime to create the power structure that Imperial elites depend on to subjugate the World. It is in this interstice, that Cliven Bundy made his stand.

The United States Government could not de-legitimize Bundy as a fanatic like David Koresh and neutralize him, given first, his call was Patriotic, second he is a “White Property Owner”. Patriotism is the call the United States Government uses to raise canon fodder for its imperial wars around the world. Such contradiction would have endangered the false basis of its existence with exposure. Given second he is White and owns Property, his execution would have potentially undermined the power structure that the imperial elite depend on to subjugate the entire world.

This is why the Imperial United States Government, owner to a standing military of a million plus clones, Nuclear Submarines, Carriers Strike Groups, Nuclear and Ballistic Missile arsenals unrivalled by any other power (now and in history), X-37B robotic space plane and the HTV-2 hypersonic glider prototype, when confronted by a small band of armed, white, property owners… blinked.

Had “the people” owned arms in England during the expropriatory “Enclosure” policy (essentially robbery of land by the elites), the history of the entire World would probably be different.

Guns matter. Raising the question, how does the other errant native, Julius Malema intend to accomplish his mission?

 “Expropriation without compensation!”

Declared the Leader! “Expropriation without compensation!” chanted the crowd in ecstatic consent! “Expropriation without compensation!” demanded the renegade! “Expropriation without compensation!” saluted Africa!

What is your method, Julius Malema? Who or what is your sovereign source, Julius Malema? Given you support Democracy, from where will you raise force to compel, reward and punish? What is your new “post-expropriation” world order? Where are your guns?

The title deed is an article defined by law but more importantly anchored in the sovereign. Thus Beth Mugo’s infamous statement “The title deed is sacrosanct”, implying to undermine it is to undermine the sovereign. It is the most powerful manifestation of the concept of “property rights”. To expropriate is to negate “Property Rights”. Property Rights are a global regime. To negate property rights is tear up the global property rights regime. It is an attack on the global imperial sovereign.

Lenin, Trotsky and their merry band of Bolsheviks and Mensheviks respectively, tore up Tsarist ancien régime and instituted Communism. A world that promised equality to the masses, “distribution” to everyone as much as they needed, “expropriation” from everyone as much it could. To the elites party membership and safety from the Red Army and dreaded Cheka.

The Queen of England massacred natives around the world, tore up their communal order and instituted Secular Imperial Colonialism in the form of “In-direct Rule”. For the masses who collaborated, the Queen promised acquisition of transcendental real-estate through Christian conversion. For the elites who collaborated, the Queen granted English as a Language, token real-estate and a place in her extractive administration overseeing native labour. For all others, her soldiers torched their villages, mowed down men, raped and killed their women and children of all ages, pogromed and interred their entire tribes and nations into camps and reservations where she would starve them into submission and death.

America killed hundreds of thousands using nuclear weapons to send a message to the entire world, Imperium. Like the Queen of England in a necessarily paraphrased copy and paste, America has “massacred natives around the world, torn up their social-political order and instituted Secular Imperialism in the form of “Democratic Rule”. For the masses who collaborated, America promised “Freedom” through Secular conversion. For the elites who collaborated, America granted “lives of the Rich and Famous”, and a place in her extractive capitalist order. For all others, American soldiers torched their villages, mowed down men, raped and killed their women and children of all ages, pogromed and interred their entire tribes and nations into refugee camps around the world where the United Nations Security Council would use them as pawns on Zbigniews Brzezinksi’s Grand Chessboard as their ‘Peacekeeping Soldiers’ abused them and their children”.

What is your source of authority Julius Malema? What imperium will you leverage to execute expropriation? What framework will you use to phase-in to a new political post-expropriation order?

Or are you Jean-Jacques Dessalines, whom after successfully stamping out resistance through the Haitian revolution of 1804, then sought to re-engage his nation to the same Imperial system that gave rise to his oppressors? This was repeated more recently through Democratic process by the Muslim Brotherhood in Egypt. A journey of blood tears and sacrifice out of Misr, literally, then right back in to the arms of Firaun.

While vengeance is sweet, vengeance is right, and vengeance is just, vengeance is only linear at individual level. At sociological level it is evolutionary. The sequence of events in relation to cause and effect only move in one direction along the timeline. A simpler but poor analogical example is, in contracts of kinship. When one marries to end the marriage one undertakes a divorce, one does not undo the marriage by un-marrying.

The failure or inability of the natives to successfully defend their land or conduct a revanche created a new reality which cannot be altered by the same political praxis that created it. Iraq and Afghanistan cannot remove the Imperial occupier through Secular Democracy, this is a matter of ontology. Somalia cannot remove America’s proxy occupation – AMISOM by the method of invitation which it presumably used to create it.

Expropriation is materialist praxis, the method of Secular Imperialism. One cannot “undo” expropriation by expropriating. Expropriating the expropriator (though fun and probably vindictively satisfying) does not undo the first act of expropriation but in essence effects a new act of expropriation with it’s own effective outcome. Vulgarly, equivalent to “raping the rapist””murdering the murderer”. It is a completely new, different, separate action/event in the continuum of life. The purpose here is to create and share a template that can help understand and discuss the nature and consequence of this line of action. This submission is not advice to “do or not do”.

Iraq and Afghanistan will lift the yoke of Imperialism by Islamic revolution. A new Islamic dispensation ordered on the sovereignty of the Sharia of Allah (Mighty & Majestic), enabled by the praxis of the Sunnah (Method) of the Prophet and last Messenger to Mankind, Muhammad (PBUH). The method for Islam to acquire dominion and the post revolution civilisation are clearly articulated in Islam’s holy texts. To those whom Islam would rule, Islam governs by rational gravity of truth, not the brutal logic of power. Islam for instance solves the problem of land concentration by instituting a land tax based on the productive potential of the land rather than expropriation. This compels productive use of the land triggering an explosion in employment opportunities (as Agriculture has in economic terms the largest potential for employment at all levels, low skill, middle to high), a drastic drop in food prices, food security, all the while averting the social and economic upheaval that devaluing the title deed would cause. As, for those who have neither the interest or capacity to cultivate the land and used the title deeds purely speculatively, the will have the opportunity to voluntarily surrender the excess they hold of the limited resource that is land through voluntary commercial transaction. Taxing the land rather than labour not only increases the treasury of the state but also the disposable income of the population creating an explosion in economic activity. Islam articulates purpose of and for life. Islam gives Language. Islam grants individual and societal tranquillity by answering the pan-ultimate question of Man. The reordering process compelled by rout and replacement of existing sovereign, is therefore complete.

Expropriation is impossible without the establishment of a new sovereign through revolution. As the Economic Freedom Fighters Party Manifesto does not articulate any new or potential sovereign source, no revolution is possible let alone in the offing. The EFF’s commitment to non-violence and democratic process will lead the people to activity that will exhaust their energies ultimately leading to surrender by the vast majority. The few strong willed and committed to ending the imperial occupation will either pressure for armed insurgency or break away to form an armed insurrection. In the South African context, this path of events seems highly unlikely.

What for Mzansi, Julius Malema? What is your promise for Mzansi?

Melanin as political criterion will not cut it as the Khoisan lady at your Cape Chamber of Commerce debate with Clem Sunter showed. To succeed you must establish a new sovereign, then lead us. The Dialectic Material sovereign failed. Only one of two choices of possible sovereign anchor remain; Extant Secular Capital and revolutionary Islamic Shari’yah, tightly coupled with their commensurate praxis of Expropriation and Proselytizaton, respectively.

Choose carefully. Do not shed human blood in vain.

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Arkanuddin Yasin is an Ideological Activist and a member of the pan-global Islamic Political Party Hizb ut-Tahrir.

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
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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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