The Mathare Social Justice Centre (MSJC) office is located off Juja road in Nairobi’s Eastlands. It is situated in a single-storeyed building planted right at the edge of Mathare Valley. The building stands out in contrast to the sea of tightly packed shanty dwellings with rusty brown tin roofs dissected into two parts by the congested Mau Mau road running through the bottom of the valley. Dark grey smoke rises from the valley depths and one catches a glimpse of the murky waters of the Mathare river flowing parallel to the busy throughway. Visitors are primed to see ruins and depravation, but residents speak of its beauty. A Rastafarian man named Jah Driver told me to think of Mathare as a chocolate city, and in a phrase, that captured the essence of Mathare’s complex sensory qualities.
On this Saturday morning, I had joined a group of resident ecological justice activists behind the Mathare Green Movement for a reflection session at the MSJC office. The group comprised of young men in their 20s. The discussion revolved around the colonial roots of Kenya’s environmental segregation policy that rendered low income neighbourhoods like Mathare deprived of tree cover.
In an attempt to share context using my personal experience living in rural Kenya, I started talking about the role of my father in grounding my environmental consciousness. I then picked on one member of the group to share his experience of the same. “ I don’t have a father,” he retorted. His delivery was deadpan. “Never knew him, never met him”. His tone forced me to quickly check my assumptions and I asked around room, “How many of you have fathers living at home? We are in a safe space, just put up your hands.” Hesitantly, starting with a single hand, a third of the room of about 30 people raised their hands, as if ashamed of the privilege of knowing a father. It was a sobering moment.
Wangui Kimari, the participatory action research coordinator for MJSC, described Mathare to me as a “ghetto of women”. The centrality of the mother in Mathare is undisputable, in fact single mothers have sustained Mathare for over eight decades of its existence. It is the mothers who run Mathare, and their sons sing praises to the resilience of their mothers. In the quest for social justice and dignity, Mathare’s mothers continue to lead from the front, determined to keep their boys alive in a social system that normalizes extrajudicial executions of young men in the poorer sections of Nairobi.
There is no shortage of men in Mathare, but rarely do we ever hear any reference to the fathers of Mathare, or any collective of men that is organized around the principle aim of fathering in the manner that distinguishes the mothers of Mathare.
Having a father present through most of my early years was a privilege I took for granted. Not only that – my biological father was a father to many others. Even though he passed on when I was a teenager, he had done enough to shape my outlook. He was a committed to his family, career and life journey, living with absolute purpose in his role as a caregiver and provider. I do not remember a single conversation about what it meant to be a man, or what I had to do to prove I was a man. He just led, kept his word and lived up to his obligations the best he could. During my father’s funeral in 1989, fathering stood out as the true measure of his success – towering above his career accomplishments and material possessions. It is the greatest inheritance he left behind for his six children.
Nearly three decades since his passing, I still have a mental picture of the functions of fatherhood – and it is everything my father embodied. I had assumed this was the norm until I started meeting adults who had never known what it was to have a father who was present; this was by no means limited to neighbourhoods like Mathare. Many, from diverse socio-economic backgrounds, only had the one mama called the baby’s daddy, the sperm donor, or at best their mother’s husband. In 1999, I embarked on a career as a newspaper columnist for the Saturday magazine of the Daily Nation, penning a column titled “Mantalk”, that focused on the subject of evolving African masculinities. I maintained the column for a decade and the topic of responsible fatherhood kept recurring, juxtaposed against the rising prominence of single mother households. I was fixated on the nuclear family as an ideal and it informed many of my biases. The men who did not show up for their children, I dismissed as spineless for failing to grasp the importance of fatherhood. The mothers who insisted on living without a father in their children’s lives were misguided, I concluded.
Even after getting acquainted with scores of people who only knew of absent, emotionally removed, or abusive fathers, I still blamed the victim for allowing themselves to be defined by their past. This was the late 1990s, as powerful external agencies pushed neoliberalism and corporatisation of the local economy across Kenya. During this period, we also witnessed a frontal assault on patriarchy by the third wave of feminism that celebrated individualism and sought to dismantle gender role stereotypes. Men felt under attack, caricatured as beneficiaries of a power structure in society that granted them control over women. The debates on shifting gender roles became a fixture of popular culture and trickled down to the individual level.
My generation, the Xers born between the mid-60s and early 80s had morphed into the first generation of men to be confused about their roles in society. We had been socialised into pre-colonial African culture and religiously assigned gender roles, but many of us found ourselves at odds with the emerging feminist consciousness. Women’s autonomy and participation in the workplace had upset the gender status quo, challenging the patriarchial logics of control and separation by men. The main misunderstanding stemmed from the inability see the patriarchy system as distinct from individuals living within it, and so the issues collapsed into conversations about individual choices and solutions.
The cultural marital obligations gradually succumbed to modern Western ideals of romanticism. Short-lived marriage unions characterised by displays of opulence followed by divorce became common. But the structural issues at play – obscure to many – was that the tough economic conditions post-Structural Adjustment Programmes, meant a significant portion of working-class and even professional men could no longer secure positions of authority based purely on their ability to meet the financial obligations of the family. The perceived crisis of masculinity was blamed on radical feminism driven by the proliferation of women empowerment programmes. In hindsight, it was also the failure of neo-liberalism to deliver jobs for a growing population, mismanagement of the political economy locally and the global financial crisis that all converged to have adverse effects on the family unit, and this exaggerated social constraints.
A culture of checking out and abandoning responsibility became normalised, showing up in the rise of deadbeat fathers. They were no societal consequences for absent fathers in urban individualised spaces. This phenomenon graduated into a full-blown lad culture that continues to arrest grown men into extended adolescence, refusing to live up to the obligations of fatherhood.
Today, we often hear about the frustrations of ‘the boy child’ as a reaction to the empowerment of ‘the girl child’, but little about the crisis of fatherlessness. Worldwide statistics state that the absence of fathers has a profound effect on the psychological development of boys. The question of fatherhood has received extensive attention in North America and Western Europe. Three American presidents – Bill Clinton, George W. Bush and Barack Obama – recognised fatherhood as a serious social problem and addressed it as a matter of policy.
The memoir Dreams of My Father by former US President Barack Obama tackles the search for acceptance and identity that many men seek today. The young Obama traveled from Chicago to his biological father’s village in Nyangoma, Kogelo in search of answers. He would find resolution standing over his father’s grave in tears, overwhelmed by the intensity of the moment. He writes about finally realising who he was at that moment, and how his entire life trajectory, his struggles and birthright, were connected a small plot of earth where his father hailed from. In finding closure, he found emotional release, and vowed to break the cycle of his own past to become a better man.
Obama’s legacy of a post-racial society as America’s first black president failed. Nonetheless, Obama’s most underrated legacy as president has been as father-in-chief. His own experience informed his choices and his exceptionalism is measured in the public devotion and commitment to raising his two daughters in the White House. Obama was not afraid to speak about the issues driving Black America’s alarming fatherhood crisis and became a model father figure embraced by the world.
According to the US Census Bureau, children who grow up without fathers are five times more likely to live in poverty and commit crime, nine times more likely to drop out of school and 20 times more likely to be jailed. They are likely to run away from home, become teenage parents, suffer abuse, drop out of school, use drugs or get divorced. This correlation of absent fathers and youth delinquency does not necessarily imply causation – indeed, racism and structural inequality could explain both family breakdown and the glaring social problems of crime, drug abuse and the like.
Even though these are statistics from the US, that reality lives with us in Kenya. The Kenya Demographic and Health Survey (KDHS) report in 2014 stated that nearly half (45 per cent) of all children in Kenya do not live with both biological parents. The death of father accounts for only 5.3 per cent of households; 22 per cent of children in Kenya live with their mothers while their fathers are alive and live elsewhere.
A widely quoted pan-African study in 2012 by Canadian sociologists Prof Shelly Clark of McGill University and Dana Hamplova from Prague’s Charles University and Institute of Sociology reported a 60 per cent probability of a single motherhood for a Kenyan woman by the age of 45. The factors attributed to birth outside marriage and the break up of the marriage union. Kenya has one of the highest levels of children living without their fathers in the home in Africa. The evidence of this on the incidence of crime, poverty drug abuse, teenage pregnancy and school drop-outs is less clearcut than in the US – a recent World Bank working paper actually showed that poverty was falling fastest in Africa in female-headed households. But this perception certainly provoked conversation on the same – I chronicled all this in the Mantalk column and the discussions it stirred up, both in the newspaper pages and in the wider society.
The trend in the public discourse is to blame the victims, the abandoned children and shame the single mothers who struggle to raise them by weighing them on a morality scale. Fatherhood is still not a social policy issue in Kenya. President Uhuru Kenyatta has taken no public positions on responsible fatherhood . We hear talk about teenage pregnancy and the crisis of single parent homes without putting the spotlight on a father who absconded his responsibility, and how this contributes to recurring social problems. No taskforce has been created to advocate responsible fatherhood and non- profit-organisations disproportionately dwell on women empowerment programmes. The advocacy vacuum has been filled by a growing number church-based men’s programs. The Man Enough programme founded by Nairobi pastor Simon Mbevi is one such programme tackling the contemporary masculinity crisis of identity through mentorship programmes grounded in Christian values. The Kenyan Anglican Men’s Association ( KAMA) is another attempt to spur male leadership in community life in keeping with a biblical mandate.
But the the spread of such programs is often undermined by the credibility of the church leadership, and on a particular view of divine fatherhood that complicates, rather than empowers, responsible earthly fatherhood – and that abets political dysfunction. Kenyan politics has traditionally enjoyed a marriage of convenience with religion. Hiding behind church mandate, savvy politicians exploit the reverence of the father figure in Kenya’s socio-religious psyche for political expendiency. Father is a title used to refer to God in Christian theology, hence God the Father.
In several Kenyan churches, the politician usurps the father figure characterization as the material provider. The colonial missionary fathers arrived as god-ordained and usurped the role of societal fathers. Christian missionaries exercised power over a community of converts and effectively curtailed the influence of existing traditional leadership structure in the Kenyan colony. Monotheists modelled god as the male parent, and therefore the father of the family becomes the divine representative on earth – and the right extends to the paternal ruler of the modern state.
The principle of the Father of the Nation thus exploits Christian metaphors of the All Mighty, All Knowing, God The Father, who rules over his underlings. The political positioning of heads of state as Fathers of a Nation is a tool of statecraft. Nations are founded by a confederation of leaders, but the state can only allow the glorification of the singular, visionary great leader.
Using this same religio-political maneuvering, the Kenyan presidency has made a case for the head of state to be revered as the exalted father of a nation. If Kenya’s first President Jomo Kenyatta was the Father, then Uhuru Kenyatta becomes his begotten son Kamwana. President Moi was Baba wa Taifa ( Father of the Nation) and an entire generation grew up consuming his well-crafted veneer of holiness, and living in complete denial of the contradictions and excesses of his 24 year reign. Former Prime Minister Raila Odinga’s designation as “Baba” reverberates divine destiny with the biblical reference of Joshua’s conquest of Canaan during the 2017 presidential campaigns.
We are socialized to obey our fathers without question, and by the same token, we must obey our leaders who by the order of societal hierarchy become the father of fathers. The citizens must submit to God the father and his earthly representatives – our political fathers – and remain beholden to the sovereign leader in his human form.
In a majority Christian nation of Kenya, the Bible enjoys more social legitmacy than the constitution, and the political godfather who wields Scripture becomes part of the extended narrative of the heavenly revelation. After all, leaders are “chosen by God”. The function of faith, in this context, is not to question the deific authority, and this thinking reinforces the myth of the father (divine, political, and domestic).
In reality, the Fathers of our Nation are more often than not tragic hero figures consumed by hubris, drunk on power, and entrapped by personality flaws. The result is the persistent violence and brutalization of a nation of children who might dare to challenge their legitimacy. The State as the Father in Kenya has effectively been absent and abusive. The figure of fatherhood in our society has been defined by fragility of the masculine head, determined to retain symbolic political power and status at the expense of the family unit.
These tensions at the individual level play out on a national stage in form of leadership at a complete loss with the functions of fatherhood. They demand rights but shun the responsibilities that come with that right. The greed for power without accountability is behind the social, political and economic despondency that marks Kenyan life. Fatherhood is not respected but rather feared as a personifaction of oppression of innocents under their jurisdiction.
The children of this nation have therefore had to come to terms with the father as a fantasy figure surrounded by myth, and are fated to bear the generational burden of the sins committed by their fathers.
The late Myles Munroe, Bahamian evangelist and author, preached that fatherhood is the ultimate work of men. This is a truth that cuts across all spiritual traditions. Our nation can no longer ignore the social dynamite of fatherlessness, and the reconstruction of a broken society rests on the value men place on fathering.
It is time for a national discourse on the value of fatherhood.
Gold and Gemstone Policy in Kenya: The Devil Is in the Detail
Small-scale artisanal gold and gemstone mining is decades-old but lack of knowledge and expertise, and limited support from the government have hampered the sector’s development.
The evergreen town of Kakamega is a picture of the hustle and bustle typical of any Kenyan town, with many hundreds of folks going about their daily business. But as you leave the town behind, the environment changes, a lush countryside of cultivated fields and densely planted trees giving no hint of the gold mining taking place in the nearby locality of Ikolomani.
Across the country, 432 miles to the southeast of Kakamega is the beautiful transit town of Voi, the largest town in Taita Taveta County which lies at the foothills of the Sagalla massif. But the much smaller town of Mwatate is the county capital, and the source of gemstones that Kenyans from other parts of the country know little about. Mwatate has rubies, red garnet, emeralds, moonstones, tsavorite, okenorite, and many more.
Small-scale artisanal gold and gemstone mining has been going on for decades in both Kakamega and Taita Taveta counties, undertaken mainly by local artisanal miners and by a few non-locals and foreign nationals.
The Mining Act 2016 recognises three levels of mining rights: artisanal mining permits, small-scale mining permits and large-scale mining licences. The small-scale permits and large-scale mining licences are issued at the national level through the Kenya Mineral Rights Board (MRB), while the artisanal mining permits are issued through the county artisanal mining committees. The Mineral Rights Board and the county Artisanal Mining Committees are administratively governed by the State Department of Mining under the Ministry of Petroleum and Mining. The Director of Mines and his representatives in the various counties are in charge of overseeing the implementation of the ministry’s policy frameworks. The Ministry of Petroleum and Mining has key mining regulations in place to govern this process.
But even though the Mineral Rights Board is in place, the process of setting up the county Artisanal Mining Committees (AMCs) has been long drawn out and there seems to be no hurry to implement the mining regulations that were commissioned in 2017. Kakamega County’s AMC was gazetted on 27 March 2020 and the team commissioned on 20 July 2020. However, the AMC has yet to begin its work as the key governmental mechanisms necessary to run the committee are still pending and so no mining permits have been issued to artisanal miners in Kakamega County since the gazettement.
Artisanal miners in Taita Taveta County are in a different situation altogether. The list of members of the county AMC constituted through their appointing authorities has been forwarded to the Ministry of Petroleum and Mining but the AMC has yet to be gazetted. When contacted on this issue, one of the reasons cited by the ministry officials was that factions within the mining fraternity have disputed the list of people proposed to be part of the AMC.
Applications for small-scale mining permits are submitted to the Mineral Rights Board through the Mining Cadastre Portal. The platform is meant to bring these services close to the miners but they complain of the slow response from the Ministry of Mining. They must travel to the ministry to submit the paperwork even after uploading it onto the portal. Access to a stable internet connection is also a challenge in the remote areas of Taita Taveta and Kakamega while some of the small-scale miners lack the capacity to use the online system. Most have to travel to the Ministry’s offices for assistance or else hire someone with the skills to undertake the work for them, rendering the application process both tedious and time-consuming.
The ministry has not undertaken any capacity building and shows a lack of commitment to make the system more efficient and user-friendly. The biggest hindrance, however, is the low budgetary allocation made to the Ministry of Mining, which leaves the staff with limited options in their efforts to serve small-scale miners.
The stated goal of the Mining Cadastre Portal is “to provide an electronic platform for all stakeholders in the mining sector in Kenya to engage directly with the Ministry of Mining.” Existing mineral rights holders (those with mining permits and licenses for mining) or those with pending applications can download, complete and upload the requisite documents. Prospective mineral rights holders can also submit their particulars and other supporting documents through the portal.
The portal is also a one-stop shop for information on mining activities in Kenya. It has a cadastre map of the key areas with mineral resources, as well as details of licence holders, and on-going applications; a click on any part of the map automatically displays the existing information about that specific geographical location.
For artisanal and small-scale miners (ASMs) in Kakamega and Taita Taveta, the portal has had a significant impact on access to public information on mining in Kenya. But the portal also has its limitations. Mining is a highly skilled sector that requires high levels of expert knowledge. Some of the requirements on the portal are beyond the scope of knowledge of most gold and gemstone miners in Kakamega and Taita Taveta. For instance, the portal requires a miner to take the coordinates of the area for which they are applying for a permit. This requires equipment that is typically used by geologists and land surveyors and that is expensive to hire or purchase. A sketch of the area or locality where the miner intends to undertake extraction is another requirement, a very sophisticated process that miners in general cannot undertake on their own.
Lack of knowledge and expertise coupled with lack of access to the internet, or even computers, therefore leaves the small-scale gold and gemstone miners unable to fully exploit the portal.
Aside from these limitations, however, the Kenya Mining Cadastre Portal has been a game changer when it comes to eliminating brokers from the mining sector and it has proven to be a more efficient system than the manual issuing of permits and licences
For instance, unlike the manual system that had no clear guidelines regarding payments, all fees due to the ministry are clearly indicated on the portal and paid directly to the ministry through a cashless system. Moreover, as the portal has centralised all the country’s mining information, cases of loss or manipulation of files or documents have reduced significantly.
The gold and gemstones that are mined in Kakamega and Taita Taveta are exported out of the country with or without any value addition under the provisions of the Mining Act of 2016 which require an export permit from the Cabinet Secretary the application for which is made on the Mining Cadastre Portal.
But while the law on the issuance of mineral export permits is sufficiently detailed, its implementation is the biggest challenge and I have no doubt at all that gold and gemstones are imported into and exported out of Kenya without any form of declaration. There are many routes along the porous Kenyan boarders through which the minerals can slip in or out of the country.
For instance, most of the gold that is mined in Kakamega is taken to Uganda by road undeclared. How can this be remedied, especially for gold and gemstone miners who want to run a clean business? Also, the process of implementing the gold refinery centre in Kakamega and the gemstone value addition centre in Voi remains pending. If the sector is streamlined, then the issue of traceability of gold and gemstones will be resolved and the mineral export licence will be of value to the artisanal and small-scale miners in the sector.
The article is done with support from Diakonia Kenya Country Office under the Madini Yetu Wajibu Wetu (Our Minerals, Our Responsibility) Project. Views expressed in the article are those of the author.
Sustainability Is Key in the Management of Natural Resources
For mineral wealth to have a positive impact there must be transparent policies, reasonable public regulation, commodity flows and sustainable and varied production systems.
Natural resource wealth has massive potential and can hugely impact the economy of a country. The natural resource sector and more particularly the petroleum and mining industry is distinguishable from other sectors of the economy in that ventures in this sector are high-risk and prone to failure if not competently undertaken. Moreover, resources in the sector are typically immovable and must be exploited on the site of their discovery.
Being exhaustible and non–renewable, these resources call for prudent exploitation and management that must also factor in intergenerational equity. And unlike other industries, the exploitation of natural resources is community-based, in the sense that the activity takes place inside communities, providing opportunities for conflict as the business pursuits of an investor threaten the general welfare of the community.
Despite the lucrative nature of the sector, it comes with a number of challenges. Learning from the many countries that have experienced the “resource curse”, it is imperative that from the outset, the following issues are taken into consideration if at all a country wishes to progress and develop through the proceeds of its natural resources.
First, a country endowed with mineral resources should always plan to diversify its economy using the proceeds from its mineral wealth. This is done to avoid the Dutch disease and to ensure that the economy can withstand shocks caused by fluctuating prices. Venezuela and Nigeria are two countries that experienced economic recession due to a fall in the price of oil.
Second, while mineral exploration and production automatically comes with a high pollution risk, there is need take contingency measures to mitigate any such damage. Deliberate steps need to be taken to avoid the Niger Delta situation where land has been so degraded that the cost of cleaning up is estimated at £900 million.
Third, the phrase “resource curse” arises from the many cases where the discovery of minerals has resulted in retrogression instead of progress for the communities within which the commodity has been found. More often than not, these host communities experience conflict when the expected benefits are not realised, sometimes because of unrealistic expectations but more often because of corruption. It is important for investors and communities to engage from the outset, ideally with the government facilitating the process. Increasingly, however, civil society and religious organisations are stepping in to fill the gap left by unresponsive governments.
It is clear that natural resource wealth can provide opportunities for countries to improve the living standards of their people and can positively impact the development of nations. Indeed, it is a commonly held belief that nations richly endowed with natural resources are more advantageously positioned to shape the economic, physical and social aspects of their development than those less endowed.
However, the paradox of plenty has been the subject of extensive research by scholars and practitioners precisely because many resource-rich countries are associated with increased poverty levels, civil war, reduced economic growth, greater inequality and social injustice. This is because of a lack of goodwill to develop other sectors of the economy that are not necessarily dependent on natural resources, among other factors.
There are however, countries that can be cited for having taken off successfully. Norway, one of the world’s richest economies, and Botswana, one of the largest producers of gemstones, have both clearly demonstrated how natural resources can be harnessed to foster development, build the economy and generally improve people’s livelihoods.
Conversely, countries like the Democratic Republic of Congo, with its has huge deposits of natural resources including cobalt which is highly sought after and is of great economic value, and Angola, with its vast reserves of natural gas, are examples of how resources can come to be regarded as a curse due to the civil wars, conflicts, under-development, low GDP, and the many other problems associated with these nations despite being resource-rich.
A number of academic studies also suggest that natural resource wealth slows down the economic growth of a country. This narrative is however challenged by countries like Singapore, the United Arab Emirates and Taiwan which, despite being modestly endowed, have invested the revenue from their limited natural resources in the areas of education and research, have strengthened their policy and legal frameworks and institutions, and established parameters for advancing wealth creation and multiplication, as well as savings for the future generations.
Many theories have been advanced in an attempt to explain the resource trap in mineral rich countries. However, none of the hypotheses advanced has identified the root cause of the paradox of resource abundance. This is because, by themselves, natural resources cannot be classified as either a curse or a blessing; they are opportunities that prudently exploited can jumpstart an economy and bring long-term fiscal benefits to a country.
Unfortunately, a majority of resource-rich countries are anti-democratic and have opaque policies and institutions. Predatory governance, greed and corruption often lead to the signing of secretive and exploitative production contracts that only benefit the investing multinationals and their countries of origin.
However, there are many tried and tested strategies and approaches that have resulted in strong economies with stable and functioning governments. For mineral wealth to have a positive impact and be a blessing there must be transparent policies, reasonable public regulation, commodity flows and sustainable and varied production systems.
A good example is the resource-rich state of Alaska in the United States where 9.6 billion barrels of oil were discovered in 1969. That year Alaska collected US$900 million from the oil lease sales but all the money was soon squandered. Worried that money from the oil resources would go to waste and benefit just a few, Alaskans voted to have the proceeds spent on state development.
Seven years later, and with infrastructure development largely achieved, a public vote established the Alaska Permanent Fund through a constitutional amendment. The fund was designed to receive at least 25 per cent of the oil revenue and in 1982 a dividend programme was added to the fund. The sovereign wealth component promotes and ensures intergenerational savings while the dividend fund ensures that all residents of Alaska enjoy the fruits of their natural resources by receiving annual dividends in the form of cash transfers. Since the first deposit of US$734,000 was made in 1977, the fund had over US$64 billion dollars in 2019 with each resident of Alaska receiving US$1,606 in dividends that year.
From the example above, it is very clear that a country can truly develop using its natural resource wealth. One of the ways in which it can do this is by securing tenure rights to natural resources through regulations that determine who can use the natural resources, for how long and under what conditions. Tenure rights clearly specify the expectations of each stakeholder with regards to their roles and, importantly, the role that the hosting communities are going to play during the entire period of the extraction of the resource.
Contract transparency is another way in which good governance can prevail in the extractive industry. Resource extraction contracts signed between the host governments and the multinational companies should be made public to provide general information to the public and ensure transparency, scrutiny and accountability.
There are countries, like Ghana, that support the idea of contract transparency as a fundamental principle in managing their extractive industry, but many nations have not fully embraced the idea of contract transparency for fear of sparking public outrage and also to conceal the information for personal gain. Through contract transparency, everything that is in the contract is laid bare and the specific expectation from every stakeholder is made public. This promotes good governance and transparency and also ensures that the benefits trickle down to the community level, promoting sustainable development.
Creation of a strong regulatory and institutional framework is also another way of ensuring good governance in the management of natural resources. The legal or regulatory framework can either enhance or inhibit development in the extractive industry and there is no template for what needs to be done in order to ensure a strong legal and regulatory framework. Each country has a unique opportunity to come up with its own tailor-made legal and regulatory framework that works for it and this involves developing laws and regulations that address specific issues in the industry while at the same time safeguarding the interests of the communities and incorporating international best practices.
Having competent and functional institutions to implement the laws and regulations is another important step towards ensuring good governance in the management of the extractive industry. For the enacted laws to be effective, they must be implemented by institutions that are proactive and competent. Narrowing the implementation gap by ensuring that what is happening on the ground is in tandem with the provisions of the law is one of the critical roles of functional institutions.
A strong civil society can help in ensuring good governance in the management of natural resources. Civil society organisations provide information and have the moral legitimacy to set the resource governance agenda. They can help to democratise power in resource management, and can work to keep other resource governance actors like governments and companies accountable. The civil society plays many roles, among which is the monitoring role, where it ensures that all the state and non-state actors play their role effectively in the management of resources and, more importantly in monitoring and ensuring that benefits are realised at the community level. They also help in highlighting corrupt practices in the industry and non-adherence to the internationally recognised practices guiding the extractive sector. Civil society organisations also have a role in representing the views of ordinary citizens on issues of national importance, in this case the extractive industry.
Lastly, civil society also plays a role in setting the agenda to ensure that the interests of the public in general, and development, are given priority. According to the Institute of Global Environmental Strategies Report of 2007, governments are increasingly involving local communities and non-governmental organisations in the management of natural resources. The ways in which the different stakeholders are involved varies. In involving different stakeholders, the governments broaden the scope of engagement and possibly minimise the chances of achieving a negative impact, reduce conflict and increase efficiency in resource management.
And finally, natural resources cannot be discussed without mentioning the environment. In an effort to benefit from the natural resource wealth while dealing with environmental issues, the following principles should be considered: All decisions made must be anchored in best governmental practice in order to ensure best practice in perpetuity. Resources must also benefit communities away from the resource as the impact of pollution may be felt away from the immediate location of the activity. Where there is no scientific evidence of possible impact, an investor should provide contingency measures and where such evidence of possible impact on the environment exists—usually through an Environmental Impact Assessment—an investor must formulate measures to avoid harming the environment and a polluter must sufficiently compensate for harm caused. We must give future generations the same opportunity to have access to a healthy environment that we as a generation have been given.
The article is done with support from Diakonia Kenya Country Office under the Madini Yetu Wajibu Wetu (Our Minerals, Our Responsibility) Project. Views expressed in the article are those of the author.
Time To Address Compensation and Resettlement Issues in Kenya’s Mining Sector
The Land Act, the Mining Act and the Land Value Act are inherently contradictory and the country lacks a national policy on issues arising from involuntary displacement.
Vision 2030 promises to transform Kenya into an industrialised middle-income country and, to that end, proposes ambitious projects which include the Standard Gauge Railway (SGR), the Lamu Port-South Sudan-Ethiopia Transport Corridor (LAPSSET), multipurpose dams and the development of oil and other mineral resources among others.
Large-scale projects, including mining projects, catalyse socio-economic development, which is what many people expect and can easily see. On the other hand, they undermine human rights, cause livelihood disruptions and break up the social fabric of the affected communities. This article focuses on this second aspect and examines compensation and resettlement policy gaps and challenges with respect to the mining sector in Kenya.
Large-scale mining projects lead to involuntary displacement, deprive those affected of the use or access to their resources, disrupt sources of livelihood and interfere with the cultural fabric of the affected communities. International safeguards developed by the World Bank and the Africa Development Bank on involuntary displacement recommend that all community concerns must be taken seriously in the planning and implementation of all investment projects.
World Bank guidelines provide that involuntary resettlement should be avoided and where it is unavoidable, all the people affected must be fully and fairly compensated. Moreover, compensation and resettlement should be seen as an opportunity to improve the livelihoods of those affected. However, the legislation currently guiding compensation and resettlement in Kenya does not regulate these processes in a clear and specific manner.
Take for instance the story of Phase 2A of the Standard Gauge Railway (SGR) that runs from Nairobi to Naivasha traversing Nairobi, Kajiado, Kiambu, Nakuru and Narok Counties, a project which was delayed for three years due to land acquisition and compensation issues.
In the June 22 2019 edition, The East African published stories of human suffering caused by the project. A mother of three, Ms Kusero was promised Sh2 million for her quarter-acre property but a house made of recycled oil drums is all she received as compensation for allowing the SGR to run through her land. Hers was one of many such stories of families whose land was compulsorily acquired for the project. On paper, they were paid billions in compensation but in reality, only a few actually received compensation.
Ms Kusero says that for people like her there were no negotiations and raising grievances regarding compensation was extremely frustrating. “You go to the National Land Commission and you are asked to go to the Ethics and Anti-Corruption Commission. Then you are sent to the Directorate of Criminal Investigation and Director of Public Prosecutions before being bounced back to the National Land Commission. In the end you get frustrated without redress.”
The second story is about the extractives sector and concerns compensation owed by the Kenya Fluorspar Company to the Kimwarer Community in Kerio Valley. After exploration and confirmation of the existence of viable fluorspar, the company excised land and started its mining operations before it had compensated and resettled those it had displaced. There were no consultations whatsoever regarding compensation.
A task force report on the Review of Fluorspar Mining in Kerio Valley established that some attempts at compensation were made. In 1982, two cheques of Sh3,606,000 and Sh500,000 were released by the National Treasury to the District Commissioner to compensate the affected residents. The land compensation value was determined at Sh450 per acre of which Sh50 was deducted directly by the District Commissioner as contribution to a local school fundraiser in the Kimwarer area.
The affected residents who wanted alternative land in compensation were promised they would be resettled on Kilima I and II and Grosell farms in Uasin Gishu. They were also promised that they would receive shares in the Flourspar Company and in the Wagon Hotel in Eldoret town. Those among them who attempted to settle in the promised land were later evicted and accused of invading private property. To date, the victims of these atrocities have not received justice.
Gaps and challenges in the policy and legislative frameworks
Large-scale mining operations require massive tracts of land and often lead to significant human rights violations. Communities whose livelihoods depend on land find themselves in a struggle to defend their rights against the mineral rights granted to investors who are usually large-scale multinationals acting with the full support of host governments.
Kenya’s constitution sets out the general principles of equitable, sustainable and efficient use of land and establishes forms of land ownership. It vests ownership of mineral resources in the government, which means that any land with mineral resources can be compulsorily acquired in the public interest. It further protects the right to property from unlawful deprivation of ownership or limitation of enjoyment unless for public purposes or in the public interest in which case prompt, just and full compensation is required. It is from these provisions that mineral resource projects draw justification to cause involuntary displacement.
Kenya passed a new Mining Act in May 2016 to bolster the legal regime and reinvigorate the mining sector. The Act provides that where a mineral right disturbs or deprives access to the landowner, causes damage to property or occasions loss of earnings, the landowner may claim compensation whose payment must be prompt, adequate and fair. It doesn’t define what “prompt”, “full” and “just compensation” mean. The mineral rights holder is responsible for all the compensation and resettlement costs.
Moreover, the Mining Act appears to overlook the sensitivity of cultural resources. It does not protect or seek to identify cultural assets. Instead, it provides that no demand or claim for compensation shall be made for any loss or damage for which compensation cannot be assessed according to legal principles. Cultural resources are sensitive owing to the level of emotional reaction they spark when interfered with. They include spiritual sites, shrines, medicinal plants and graves whose value cannot be determined using formal processes but only through consultations and negotiations in good faith. The World Bank’s cultural safeguards on involuntary displacement provide that cultural property should be identified, protected and appropriate actions taken to avoid or mitigate adverse impacts, and that interference with cultural assets may only be justified when the loss or damage is agreed to be unavoidable.
The Land Act empowers the National Land Commission on all matters related to compensation. The Commission has the responsibility to make inquiries and determine interests in the land, receive claims of compensation and facilitate just compensation. It does this on request from agencies seeking to compulsorily acquire land. From 2013 to 2019, the Commission paid-out Sh38.273 billion in compensation of which 75.2 per cent went to the SGR and road projects. Within the same period, neither land acquisition nor compensation was undertaken by the Commission for mining-related projects, which raises the question as to how land acquisitions and compensation for extractives are carried out.
Parliament passed the Land Value (Amendment) Act In 2019 to address concerns relating to compulsory land acquisition, compensation and resettlement. One of the gains in this law is that it defines “just compensation”, “prompt” and “full”, terms that are used in the Mining Act, the Land Act and in other laws without clarity. Accordingly, “Just compensation” means a form of fair compensation that is assessed and determined on the basis of the criteria set out under the act. “Prompt” means within a reasonable period of time but not more than one year after the Commission has taken possession of the land. “Full” means the restoration of the value of the land, including improvements made on the land at the date of notice of acquisition.
It is to be noted that unlike in the past where the NLC was required to compensate the landowner before taking possession, the Land Value law now allows possession of the land before compensation is paid. This is contrary to the Mining Act which provides for prior payment of compensation. Taking possession before compensation would disadvantage the affected persons and the one-year period set for paying compensation is too long especially for large-scale mining projects that normally deprive the owner of use of property such as farmland, homestead and grazing areas. The World Bank standards require that compensation is paid in full before displacement or restriction of access.
The Land Value law also provides criteria for assessing the value of compulsorily acquired land based on a land value index to be developed by the Land Cabinet Secretary in consultation with county governments and approved by the National Assembly and the Senate. Assessing land value for compensation purposes requires wide consultations with the affected persons and the relevant agencies, which this Act does not seem to embrace. As provided for, the development of a land value index excludes the participation of the National Land Commission, land valuation agencies such as Surveyors of Kenya, government ministries such as the Ministry of Petroleum and Mining whose main work causes involuntary displacement.
Key issues and action required
The first issue is the fragmentation of the legal frameworks that guide compensation and resettlement in Kenya. The country lacks a national compensation and resettlement policy that standardises compensation and resettlement and ensures that all socio-economic and cultural issues arising from involuntary displacement are properly addressed. The national policy framework on compensation and resettlement should be developed taking into consideration international best practices and safeguards to provide a harmonised policy direction that considers all the complexities that come with involuntary displacement. The policy framework should broadly articulate compensation and resettlement in such a way that it is understood to be an opportunity for improving the livelihoods of the affected people rather than as a process to subjugate them and worsen their livelihoods. At the very least, regulations on compensations and resettlement should be developed for the Mining Act.
The second issue is the uncoordinated institutional approach for compensation matters. The National Land Commission takes charge of both land acquisition and compensation based on requests and funds from the acquiring agencies whose roles are often unclear. The suggested national policy should provide a clear framework for institutional coordination and harmonise the efforts of all relevant agencies; compensation and resettlement must be a multi-agency function. In this way, overlooking community concerns will be minimised and, more importantly, the processes will be more transparent and less fraudulent. Effective institutional coordination will also enable an integrated grievance redress mechanism.
The third issue concerns the land survey regime; it is mired in corruption, inherently opaque and exploitative. Compulsory land acquisition heightens emotions and ignites serious land speculation perpetrated by public officers with privileged information who collude with greedy elites to defraud the state through inflated land prices.
Reforms to introduce transparent land surveying and valuation are required. This means strengthening the policy frameworks and the institutions involved and also requires a robust mechanism for monitoring compulsory acquisition, compensation and resettlement. It should become policy that a compulsory land survey is undertaken prior to the compulsory acquisition of any unregistered land.
The fourth issue is the absence of cultural resources as a factor of compensation and resettlement in the available legislations. Disruption caused by extractive projects on the social, economic and cultural ecosystems of the affected people can never be truly compensated or restored. Compensation merely helps the affected persons to continue with their livelihoods but does not and cannot restore their exact loss.
Legislations guiding compensation should clearly recognise cultural resources and all assets with cultural meaning and value for the affected people as an aspect of the process of negotiating compensation. Effective community participation must be allowed in identifying and deciding the compensation for cultural resources that may be affected by mining projects.
The final issue has to do with the procedures for paying compensation. Where the project affects the whole family, it is unclear whether compensation is awarded to an individual or to a household. Capacity building for the beneficiaries on the use of finances is also a concern and because it is rarely undertaken, waste of compensation funds, family disintegration, homelessness and other socio-economic concerns ensue. Support mechanisms to ensure effective financial planning are therefore important.
The lack of a mechanism to monitor the payment of compensation is another concern, leading to serious irregularities, corruption and human rights violations. Furthermore, the approach to dispute resolution needs to be harmonised to recognise structures at the county level. As they currently stand, the Land Act, the Mining Act and the Land Value Act are inherently contradictory.
The article is done with support from Diakonia Kenya Country Office under the Madini Yetu Wajibu Wetu (Our Minerals, Our Responsibility) Project. Views expressed in the article are those of the author.
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