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Decolonising My Soul: My Journey to Reclaim African Spirituality

11 min read.

After seven years of being on the journey, I can say that I have arrived at several shores of knowing and understanding. Even more, however, I have begun to wonder about the silence around African spirituality, and its persistent labelling as sorcery or devil worship.

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At 11 pm on Thursday, 20th October 2011, I turn the last page of Coconut by Kopano Matlwa, and I know that I’m not going back to church again. I don’t know what that means at that moment, having been a staunch Catholic, but I know that I’m not going back.

That night was the beginning of my now seven-year quest to discover, recover and live African spirituality. The quest has involved many locations and people – many of them not in Africa – and has helped me to re-evaluate and reconstruct a world that had come crashing down that night. It was not a direct or easy journey. People had many questions, especially those who had known me as the person who would constantly invite others to Mass, or who would confess the mortal sin of having skipped Mass. I didn’t have the answers, and I was making this journey far from home and without much (worldly) guidance. The crash that happened that night hadn’t left a map of where to go, much less where to begin, so I had to make the way as I went.

After seven years of being on the journey, I can say that I have arrived at several shores of knowing and understanding. Even more, however, I have begun to wonder about the silence around African spirituality, and its persistent labelling as sorcery or devil worship. And as a researcher of the environment, I see the connection of these silences and the colonial enterprise, which forced a forgetting of an all-alive Earth, the ancestors and other un-embodied beings like nature spirits, and rendered the Earth as a space for domination. We’re all living with the ecological fall-out from this kind of worldview. I started asking myself: can we recover these ways of being, knowing and doing, and re-engage with the living Earth from a place beyond coloniality?

But back to the night of the crash. In the book I had just read, Fikile, a waitress living in a township, aspires to make it big and be white. She visits her grandmother, Gogo, and participates in her prayers that go on for several hours, a dramatic performance accompanied by wailing and sobs. Gogo moans the lot of black South Africans, the violence, the unemployment, the pain, the assault…The prayer was moving to read until I got to the end where Gogo inexplicably made peace with the God she was praying to, convinced that this God would resolve the issues and make a way. That jarred. This same God that she was praying to was brought by the same people whose coming caused the troubles she was praying about. And that was the end for me.

Walking into the uncertainty was not easy. For weeks and months after, I would scour the Internet trying to find apologies from the church for their hand in colonialism. There were none. Not even in that most progressive Vatican II Council where they finally decided that Africans singing in church and praying in their languages was okay. So I kept walking.

The questions propelling me were in the silences. Whereas Christianity, Islam, Hinduism, and even Buddhism, had some form and reality for me, I wondered what African religion was; I had never been told about it or come across it. I had grown up in Nairobi, or more rightly, in Ongata Rongai (yes there are people who’ve lived here all their lives), and without grandparents – they had died before I was born or soon after. I did not have much contact with any “rural home”. On both sides, family members had long been swirled into urban Nairobi pursuits. My brothers and I were third generation “uprooted” in a way. But I was sure that my people had had religious or spiritual practices of some sort. The question was how to find those out while I was studying in the United States. So I started with the one thing I knew I had: my grandmother. My grandmother died a year and seven days before I was born, and I feel she went to call me, the last of the granddaughters named after her. I began my quest by calling to her.

Soul Searching
I am…
Soul searching, seeking to find
Pieces of clay, mud and morning’s breath,
Evening light, sounds and fire stones,
The human warmth that makes me, me.
The touch of my cũcũ – and the others that I didn’t know-
Her stories by firelight, the food we might have made together.
I wish she had taught me to weave,
To warp and weft and tie the knots of this life’s kiondo.
My gogo’s spittle in blessing…
I call on it on this journey I’m taking,
To sound the depths of my heart
And avoid treacherous waters.

One of the ways I was calling her was through poetry. I had written poetry in high school but stopped when I got to university, so I began writing again. This time I was writing a different kind of poetry, one that was calling out to my ancestors, seeking a path, seeking clarity on where to go. I also began to do libations as a way of praying, without necessarily knowing the formula (there isn’t really; ritual is more about spirit than form, though form can carry spirit). I would call on my grandmother, and as I poured libations I repeated the one line of Kikuyu prayer I knew: “Thai thathaiya Ngai, thai”, a call for peace, in between my imploring: help me on this journey, I’m trying to figure my way back, I’m trying to learn these things, open the way for me, show me, teach me.

On the path of sounding out the silences, I started reading more writing by African authors. Up to that point I had been an ardent consumer of the so-called classics – William Shakespeare, Charles Dickens and the like. I had not encountered much African literature besides the mandatory high school set-books and I was thirsty for anyone who could tell me anything about African traditions. So I began a self-guided course on reading African authors, going to the library to look for fiction by Africans, asking for recommendations from friends and devouring all that I could find in between my classes: Ngũgĩ wa Thiong’o, Chimamanda Adichie, Ngwatilo Mawiyoo, Okot p’Bitek, anthologies of short stories… As I kept reading, ways of thinking and worldviews (on women’s clothing, on prisons as justice, on men’s beauty) that I had never questioned began to fall away. Histories of Kenya’s colonial period, and of colonialism in the Americas, also helped me understand the world as it exists now was created and was not a matter of fact, unchangeable. Reading was a way of beginning to see with new eyes.

I also learnt how to cook, researching on indigenous African crops and trying out new things with traditional ingredients – a way of reimagining the old. Cooking was significant for me because I had always resisted learning at home; I was sure that I would then be expected to cook for my elder brothers. But away from my mother’s kitchen, I made my own world by experimenting, baking with nduma and millet, learning to make pilau, mahamri and mukimo and so on. That was also the semester I enrolled in voice lessons and began to sing in an a cappella group. In high school I had been labelled tone-deaf and asked to stand in the back and mouth the words during the inter-house singing competitions. In subtle internal ways, singing rearranged me, opened me up, and helped me to regain a sense of self and voice in the new becoming.

The following year, I travelled on a programme studying cities in Brazil, South Africa and Vietnam, and I took the opportunity to learn from other traditions. I figured ancestrality and indigenous spirituality are not only African, and I could learn from different systems of connecting to and venerating one’s ancestors. In every place, I would ask people to tell me and show me how spirituality was done. In Brazil, my host-mum took us to an Umbanda temple, Umbanda is one of the major Afro-Brazilian religions syncretised from practices and beliefs of enslaved Africans taken to Brazil. I wasn’t there as a tourist spectator; I was there to learn and practise alongside others. At the temple, one of the practitioners broke out of the circle of the initiated worshippers and approached me to pray with me, something that my host-mum later said never happens. I took this as a confirmation that I was on the right path even though I didn’t have absolute clarity.

In South Africa I met an academic professor at the University of Cape Town who researched African traditional religions. Something he said helped me understand one of my difficulties with accessing indigenous spirituality in East Africa. He said that traditional religions in West Africa tend to be more public. There are shrines and priests and priestesses devoted to different gods and goddesses and you can go to them and learn. In East and Southern Africa, religions are more private and family-oriented. Even though sacred sites may exist, large community rituals are less common. So if you want to learn outside of family, there’s no place you can say, “Let me go there”.

Vietnam was fascinating because ancestral veneration is absolutely integrated in the culture. Houses have an ancestral shrine where family members place food and other items, food that we later consumed. Walking down the streets you are bound to see, and perhaps be shocked by, people burning money. Upon asking we found out that they were burning dollar bills (fake ones) to send to their ancestors in other realms. Seeing the seamlessness of these practices in daily life was useful and inspiring. In later years I have wondered what difference this holding on to indigenous philosophies and practices in East and South Asia makes compared to Africa’s seeming rush to black out her own.

When I went back to campus for my last semester, a bit less uncertain, I joined a dance group whose main repertoire was dances from Haiti connected to vodu, another syncretised African religion created from the mix of traditions carried by enslaved Africans to the Caribbean. I began to learn the history of the Haitian revolution, and to dance for the gods and goddesses (Lwas) of a tradition that sparked and sustained the revolution that birthed what was the first black republic in 1804.

Later that year, I continued exploring spirituality through dance when I travelled back to Brazil and began dancing the Orixás of Candomblé, yet another syncretised African religion. My host-brother, Dimas, was an activist and practitioner of Candomblé. Observing his practice in song, drum, dance and prayer, having conversations despite my struggling Portuguese, was special. The Orixás, or Oriṣas, are a deity pantheon in Yoruba Ifa tradition that embody particular traits and are often connected to certain nature elements. To this day I feel a great affinity to and respect for these African-based religions as they exist in and have been preserved and added to over time in South America and the Caribbean, and I continue to dance and teach these dances.

Travelling to Mexico afterward, I joined weekly Aztec/Mexica dances at the invitation of my friend Lupita (not Nyong’o; the name is common in Mexico, here short for Guadalupe) that happened in a public square under moonlight. In this dance that would last two hours or more, we saluted all six sides (North, East, West, South, up and down), danced the stories of different animal gods, and ended by claiming the continued glory and fame of Mexico-Tenochtitlan whose roots had not and would not be decimated.

The scroll reads: “Destruyeron mis hojas, cortaron mis ramas, cortaron mi tronco…pero mis raices jamás podrán arrancarlas. Netzahualcoyotl” – They destroyed my leaves, cut my branches, cut my trunk (some versions say burnt my trunk), but never will they be able to uproot my roots.

This declaration at the end of each dance never failed to bring tears to my eyes, as it explicitly recognised the violence of colonialism, and declared the continued resilience of a people’s spiritualities and ways of being. The sense of community and welcoming amongst these dancers was also beautiful. After each dance we would gather and share food, gratitude and updates from the week. In participating in all of these dances I recognised that these were not my traditions, but were traditions that had similar tenets and elements as the tradition I was trying to get closer to. Dancing became a vehicle to reach my people. Vodu, Candomblé and danza Mexica-Chichimeca connected me to my body and my spirit, and then through that reconnection, to my ancestors, because my ancestors are in me and I am in them.

I went back to South Africa and this time had the opportunity to meet with a sangoma for a bone reading. He was recommended to me by a colleague who had struggled for years with debilitating depression that no doctor or medicine seemed to be helping with. She went to the sangoma as a last resort, figuring, “well nothing else has worked”. I had just one question for my ancestors: am I on the right path? My ancestors said yes. They said keep going, keep asking and finding out.

Considering I was due to move back to Kenya, I had one question for the sangoma: who in Kenya can I speak to about this, where can I go to continue to deepen this journey? He gave me a four-part prescription to formally introduce myself to my ancestors and pilgrimage to their lands. He also gave me the name of a woman also on her indigenous spirituality path and who works with communities to revive their ecocultural practices for freedom and well-being. When I met Wanjiku she introduced me to a tens-of-thousands-year-old African cultural and spiritual tradition in the form of African rock art, a heritage that had been unknown to me up to that point. Meeting Wanjiku was also a relief because I now had living proof that it was possible to live one’s African spirituality in East Africa.

San* rock painting in the Dâures Mountains, in what is today Namibia. Image source: Trust for African Rock Art/David Coulson

At home, I was met with the same barrage of questions that my friends had thrown at me when I first left the church. I came back without a job or money (a no-no if you’re coming from abroad), having left the church, and having dropped the three English names my parents had given me at birth. None of this went down easy for them, and the pushback I experienced was so intense that at one point I wasn’t speaking with one of my parents. My parents have never really come round to this new self that I am. They think I am lost, and they still try and get me to go back to church. But I am known for my stubbornness.

It’s been seven years and I’m at the point now where I introduce myself as a practitioner of African indigenous spirituality, no longer afraid to show up in my fullness. Africa, ancestrality and the Earth are a core part of who I am. When the crash happened, I thought I would have to go through the rubble picking piece by piece, and evaluating what is useful to keep and what is not. Along the way I have done a lot of reconstruction and reimagination, picking up and discarding. Much has been embodied, and has happened in doing: libations, writing, singing, dressing, dancing and cooking. My journey has also had lots of gifts along the way – of knowledge, instruments, conversations, practices, movements, songs, rituals, food, and connections. All of these elements were researched, reconnected to, reimagined, reconstructed, and welcomed into, and form a part of my practice today.

I’ve also learned to engage with nature spirits and recover the ontology and practice of a living Earth that is integral to African cultures. Like sitting in a garden. Like speaking to whoever is around me – animal spirits, plant spirits, water, rocks, all allies in the journey to reconnect to self, to ancestors and to Earth. Paying attention to animal messengers. Giving thanks to and paying full attention to my food, to water, to air. I have learnt to salute new lands that I travel to and acknowledge the land as sovereign and alive. I have learnt to listen and sing songs and dance dances that are gifted through such interactions. And the journey continues.

For my Master’s dissertation in African Studies last year, I researched what African ways of being, knowing and doing have to offer for healing and thriving past colonial wounds and today’s continued coloniality. I wanted to think about ideas and practices that are beyond a governance centred on the colonial state, beyond justice practices that are restricted to a Western model retributive justice, and beyond a view of the Earth that only sees her as dead resources to be exploited.

Still, in reading and engaging with post-colonial academic African works, I kept having the feeling that we have not yet gone far enough. We have not yet taken the jump to imagine complete freedom, and the absence or transformation (not reform) of some of our shackles. We have been hard at work decolonising our minds for several decades, but I see less work to decolonise our bodies and even less to decolonise our spirits and restore a relational philosophy and practice in relation to our ecologies, societies and unembodied relations.

It takes some courage to step forward and declare certain things when all around you there is reluctance to hear that or see that, but that is the medicine required for these deeply troubled times and spaces we’re in. My ancestors tell me that this is medicine necessary for Africa today, and that the Earth and all who make home with her require it.

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Wangũi wa Kamonji is an independent researcher, dancer, writer and facilitator of regenerative presents and futures rooted in African lifeways. She is hearth keeper for the collective Afrika hai that researches, reconnects to and reimagines indigenous Afrikan knowledge and practices for regeneration. She is based in Ongata Rongai and blogs at wangui.org.

Reflections

Gold and Gemstone Policy in Kenya: The Devil Is in the Detail

Small-scale artisanal gold and gemstone mining is decades-old but lack of knowledge and expertise, and limited support from the government have hampered the sector’s development.

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Gold and Gemstone Policy in KenyA: The Devil Is in the Detail
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The evergreen town of Kakamega is a picture of the hustle and bustle typical of any Kenyan town, with many hundreds of folks going about their daily business. But as you leave the town behind, the environment changes, a lush countryside of cultivated fields and densely planted trees giving no hint of the gold mining taking place in the nearby locality of Ikolomani.

Across the country, 432 miles to the southeast of Kakamega is the beautiful transit town of Voi, the largest town in Taita Taveta County which lies at the foothills of the Sagalla massif. But the much smaller town of Mwatate is the county capital, and the source of gemstones that Kenyans from other parts of the country know little about. Mwatate has rubies, red garnet, emeralds, moonstones, tsavorite, okenorite, and many more.

Small-scale artisanal gold and gemstone mining has been going on for decades in both Kakamega and Taita Taveta counties, undertaken mainly by local artisanal miners and by a few non-locals and foreign nationals.

The Mining Act 2016 recognises three levels of mining rights: artisanal mining permits, small-scale mining permits and large-scale mining licences. The small-scale permits and large-scale mining licences are issued at the national level through the Kenya Mineral Rights Board (MRB), while the artisanal mining permits are issued through the county artisanal mining committees. The Mineral Rights Board and the county Artisanal Mining Committees are administratively governed by the State Department of Mining under the Ministry of Petroleum and Mining. The Director of Mines and his representatives in the various counties are in charge of overseeing the implementation of the ministry’s policy frameworks. The Ministry of Petroleum and Mining has key mining regulations in place to govern this process.

But even though the Mineral Rights Board is in place, the process of setting up the county Artisanal Mining Committees (AMCs) has been long drawn out and there seems to be no hurry to implement the mining regulations that were commissioned in 2017. Kakamega County’s AMC was gazetted on 27 March 2020 and the team commissioned on 20 July 2020. However, the AMC has yet to begin its work as the key governmental mechanisms necessary to run the committee are still pending and so no mining permits have been issued to artisanal miners in Kakamega County since the gazettement.

Artisanal miners in Taita Taveta County are in a different situation altogether. The list of members of the county AMC constituted through their appointing authorities has been forwarded to the Ministry of Petroleum and Mining but the AMC has yet to be gazetted. When contacted on this issue, one of the reasons cited by the ministry officials was that factions within the mining fraternity have disputed the list of people proposed to be part of the AMC.

Applications for small-scale mining permits are submitted to the Mineral Rights Board through the Mining Cadastre Portal. The platform is meant to bring these services close to the miners but they complain of the slow response from the Ministry of Mining. They must travel to the ministry to submit the paperwork even after uploading it onto the portal. Access to a stable internet connection is also a challenge in the remote areas of Taita Taveta and Kakamega while some of the small-scale miners lack the capacity to use the online system. Most have to travel to the Ministry’s offices for assistance or else hire someone with the skills to undertake the work for them, rendering the application process both tedious and time-consuming.

The ministry has not undertaken any capacity building and shows a lack of commitment to make the system more efficient and user-friendly. The biggest hindrance, however, is the low budgetary allocation made to the Ministry of Mining, which leaves the staff with limited options in their efforts to serve small-scale miners.

The stated goal of the Mining Cadastre Portal is “to provide an electronic platform for all stakeholders in the mining sector in Kenya to engage directly with the Ministry of Mining.” Existing mineral rights holders (those with mining permits and licenses for mining) or those with pending applications can download, complete and upload the requisite documents. Prospective mineral rights holders can also submit their particulars and other supporting documents through the portal.

The portal is also a one-stop shop for information on mining activities in Kenya. It has a cadastre map of the key areas with mineral resources, as well as details of licence holders, and on-going applications; a click on any part of the map automatically displays the existing information about that specific geographical location.

For artisanal and small-scale miners (ASMs) in Kakamega and Taita Taveta, the portal has had a significant impact on access to public information on mining in Kenya. But the portal also has its limitations. Mining is a highly skilled sector that requires high levels of expert knowledge. Some of the requirements on the portal are beyond the scope of knowledge of most gold and gemstone miners in Kakamega and Taita Taveta. For instance, the portal requires a miner to take the coordinates of the area for which they are applying for a permit. This requires equipment that is typically used by geologists and land surveyors and that is expensive to hire or purchase. A sketch of the area or locality where the miner intends to undertake extraction is another requirement, a very sophisticated process that miners in general cannot undertake on their own.

Lack of knowledge and expertise coupled with lack of access to the internet, or even computers, therefore leaves the small-scale gold and gemstone miners unable to fully exploit the portal.

Aside from these limitations, however, the Kenya Mining Cadastre Portal has been a game changer when it comes to eliminating brokers from the mining sector and it has proven to be a more efficient system than the manual issuing of permits and licences

For instance, unlike the manual system that had no clear guidelines regarding payments, all fees due to the ministry are clearly indicated on the portal and paid directly to the ministry through a cashless system. Moreover, as the portal has centralised all the country’s mining information, cases of loss or manipulation of files or documents have reduced significantly.

The gold and gemstones that are mined in Kakamega and Taita Taveta are exported out of the country with or without any value addition under the provisions of the Mining Act of 2016 which require an export permit from the Cabinet Secretary the application for which is made on the Mining Cadastre Portal.

But while the law on the issuance of mineral export permits is sufficiently detailed, its implementation is the biggest challenge and I have no doubt at all that gold and gemstones are imported into and exported out of Kenya without any form of declaration. There are many routes along the porous Kenyan boarders through which the minerals can slip in or out of the country.

For instance, most of the gold that is mined in Kakamega is taken to Uganda by road undeclared. How can this be remedied, especially for gold and gemstone miners who want to run a clean business? Also, the process of implementing the gold refinery centre in Kakamega and the gemstone value addition centre in Voi remains pending. If the sector is streamlined, then the issue of traceability of gold and gemstones will be resolved and the mineral export licence will be of value to the artisanal and small-scale miners in the sector.

The article is done with support from Diakonia Kenya Country Office under the Madini Yetu Wajibu Wetu (Our Minerals, Our Responsibility) Project. Views expressed in the article are those of the author.

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Reflections

Sustainability Is Key in the Management of Natural Resources

For mineral wealth to have a positive impact there must be transparent policies, reasonable public regulation, commodity flows and sustainable and varied production systems.

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Sustainability Is Key in the Management of Natural Resources
Photo: Unsplash/Sebastian Pichler
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Natural resource wealth has massive potential and can hugely impact the economy of a country. The natural resource sector and more particularly the petroleum and mining industry is distinguishable from other sectors of the economy in that ventures in this sector are high-risk and prone to failure if not competently undertaken. Moreover, resources in the sector are typically immovable and must be exploited on the site of their discovery.

Being exhaustible and non–renewable, these resources call for prudent exploitation and management that must also factor in intergenerational equity. And unlike other industries, the exploitation of natural resources is community-based, in the sense that the activity takes place inside communities, providing opportunities for conflict as the business pursuits of an investor threaten the general welfare of the community.

Despite the lucrative nature of the sector, it comes with a number of challenges. Learning from the many countries that have experienced the “resource curse”, it is imperative that from the outset, the following issues are taken into consideration if at all a country wishes to progress and develop through the proceeds of its natural resources.

First, a country endowed with mineral resources should always plan to diversify its economy using the proceeds from its mineral wealth. This is done to avoid the Dutch disease and to ensure that the economy can withstand shocks caused by fluctuating prices. Venezuela and Nigeria are two countries that experienced economic recession due to a fall in the price of oil.

Second, while mineral exploration and production automatically comes with a high pollution risk, there is need take contingency measures to mitigate any such damage. Deliberate steps need to be taken to avoid the Niger Delta situation where land has been so degraded that the cost of cleaning up is estimated at £900 million.

Third, the phrase “resource curse” arises from the many cases where the discovery of minerals has resulted in retrogression instead of progress for the communities within which the commodity has been found. More often than not, these host communities experience conflict when the expected benefits are not realised, sometimes because of unrealistic expectations but more often because of corruption. It is important for investors and communities to engage from the outset, ideally with the government facilitating the process. Increasingly, however, civil society and religious organisations are stepping in to fill the gap left by unresponsive governments.

It is clear that natural resource wealth can provide opportunities for countries to improve the living standards of their people and can positively impact the development of nations. Indeed, it is a commonly held belief that nations richly endowed with natural resources are more advantageously positioned to shape the economic, physical and social aspects of their development than those less endowed.

However, the paradox of plenty has been the subject of extensive research by scholars and practitioners precisely because many resource-rich countries are associated with increased poverty levels, civil war, reduced economic growth, greater inequality and social injustice. This is because of a lack of goodwill to develop other sectors of the economy that are not necessarily dependent on natural resources, among other factors.

There are however, countries that can be cited for having taken off successfully.  Norway, one of the world’s richest economies, and Botswana, one of the largest producers of gemstones, have both clearly demonstrated how natural resources can be harnessed to foster development, build the economy and generally improve people’s livelihoods.

Conversely, countries like the Democratic Republic of Congo, with its has huge deposits of natural resources including cobalt which is highly sought after and is of great economic value, and Angola, with its vast reserves of natural gas, are examples of how resources can come to be regarded as a curse due to the civil wars, conflicts, under-development, low GDP, and the many other problems associated with these nations despite being resource-rich.

A number of academic studies also suggest that natural resource wealth slows down the economic growth of a country. This narrative is however challenged by countries like Singapore, the United Arab Emirates and Taiwan which, despite being modestly endowed, have invested the revenue from their limited natural resources in the areas of education and research, have strengthened their policy and legal frameworks and institutions, and established parameters for advancing wealth creation and multiplication, as well as savings for the future generations.

Many theories have been advanced in an attempt to explain the resource trap in mineral rich countries. However, none of the hypotheses advanced has identified the root cause of the paradox of resource abundance. This is because, by themselves, natural resources cannot be classified as either a curse or a blessing; they are opportunities that prudently exploited can jumpstart an economy and bring long-term fiscal benefits to a country.

Unfortunately, a majority of resource-rich countries are anti-democratic and have opaque policies and institutions. Predatory governance, greed and corruption often lead to the signing of secretive and exploitative production contracts that only benefit the investing multinationals and their countries of origin.

However, there are many tried and tested strategies and approaches that have resulted in strong economies with stable and functioning governments. For mineral wealth to have a positive impact and be a blessing there must be transparent policies, reasonable public regulation, commodity flows and sustainable and varied production systems.

A good example is the resource-rich state of Alaska in the United States where 9.6 billion barrels of oil were discovered in 1969. That year Alaska collected US$900 million from the oil lease sales but all the money was soon squandered. Worried that money from the oil resources would go to waste and benefit just a few, Alaskans voted to have the proceeds spent on state development.

Seven years later, and with infrastructure development largely achieved, a public vote established the Alaska Permanent Fund through a constitutional amendment. The fund was designed to receive at least 25 per cent of the oil revenue and in 1982 a dividend programme was added to the fund. The sovereign wealth component promotes and ensures intergenerational savings while the dividend fund ensures that all residents of Alaska enjoy the fruits of their natural resources by receiving annual dividends in the form of cash transfers. Since the first deposit of US$734,000 was made in 1977, the fund had over US$64 billion dollars in 2019 with each resident of Alaska receiving US$1,606 in dividends that year.

From the example above, it is very clear that a country can truly develop using its natural resource wealth. One of the ways in which it can do this is by securing tenure rights to natural resources through regulations that determine who can use the natural resources, for how long and under what conditions. Tenure rights clearly specify the expectations of each stakeholder with regards to their roles and, importantly, the role that the hosting communities are going to play during the entire period of the extraction of the resource.

Contract transparency is another way in which good governance can prevail in the extractive industry. Resource extraction contracts signed between the host governments and the multinational companies should be made public to provide general information to the public and ensure transparency, scrutiny and accountability.

There are countries, like Ghana, that support the idea of contract transparency as a fundamental principle in managing their extractive industry, but many nations have not fully embraced the idea of contract transparency for fear of sparking public outrage and also to conceal the information for personal gain. Through contract transparency, everything that is in the contract is laid bare and the specific expectation from every stakeholder is made public. This promotes good governance and transparency and also ensures that the benefits trickle down to the community level, promoting sustainable development.

Creation of a strong regulatory and institutional framework is also another way of ensuring good governance in the management of natural resources. The legal or regulatory framework can either enhance or inhibit development in the extractive industry and there is no template for what needs to be done in order to ensure a strong legal and regulatory framework. Each country has a unique opportunity to come up with its own tailor-made legal and regulatory framework that works for it and this involves developing laws and regulations that address specific issues in the industry while at the same time safeguarding the interests of the communities and  incorporating international best practices.

Having competent and functional institutions to implement the laws and regulations is another important step towards ensuring good governance in the management of the extractive industry. For the enacted laws to be effective, they must be implemented by institutions that are proactive and competent. Narrowing the implementation gap by ensuring that what is happening on the ground is in tandem with the provisions of the law is one of the critical roles of functional institutions.

A strong civil society can help in ensuring good governance in the management of natural resources.  Civil society organisations provide information and have the moral legitimacy to set the resource governance agenda. They can help to democratise power in resource management, and can work to keep other resource governance actors like governments and companies accountable. The civil society plays many roles, among which is the monitoring role, where it ensures that all the state and non-state actors play their role effectively in the management of resources and, more importantly in monitoring and ensuring that benefits are realised at the community level. They also help in highlighting corrupt practices in the industry and non-adherence to the internationally recognised practices guiding the extractive sector. Civil society organisations also have a role in representing the views of ordinary citizens on issues of national importance, in this case the extractive industry.

Lastly, civil society also plays a role in setting the agenda to ensure that the interests of the public in general, and development, are given priority. According to the Institute of Global Environmental Strategies Report of 2007, governments are increasingly involving local communities and non-governmental organisations in the management of natural resources. The ways in which the different stakeholders are involved varies. In involving different stakeholders, the governments broaden the scope of engagement and possibly minimise the chances of achieving a negative impact, reduce conflict and increase efficiency in resource management.

And finally, natural resources cannot be discussed without mentioning the environment. In an effort to benefit from the natural resource wealth while dealing with environmental issues, the following principles should be considered: All decisions made must be anchored in best governmental practice in order to ensure best practice in perpetuity. Resources must also benefit communities away from the resource as the impact of pollution may be felt away from the immediate location of the activity. Where there is no scientific evidence of possible impact, an investor should provide contingency measures and where such evidence of possible impact on the environment exists—usually through an Environmental Impact Assessment—an investor must formulate measures to avoid harming the environment and a polluter must sufficiently compensate for harm caused. We must give future generations the same opportunity to have access to a healthy environment that we as a generation have been given.

The article is done with support from Diakonia Kenya Country Office under the Madini Yetu Wajibu Wetu (Our Minerals, Our Responsibility) Project. Views expressed in the article are those of the author.

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Reflections

Time To Address Compensation and Resettlement Issues in Kenya’s Mining Sector

The Land Act, the Mining Act and the Land Value Act are inherently contradictory and the country lacks a national policy on issues arising from involuntary displacement.

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Time To Address Compensation and Resettlement Issues in Kenya’s Mining Sector
Photo: Unsplash/Japhet Khendlo
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Vision 2030 promises to transform Kenya into an industrialised middle-income country and, to that end, proposes ambitious projects which include the Standard Gauge Railway (SGR), the Lamu Port-South Sudan-Ethiopia Transport Corridor (LAPSSET), multipurpose dams and the development of oil and other mineral resources among others.

Large-scale projects, including mining projects, catalyse socio-economic development, which is what many people expect and can easily see. On the other hand, they undermine human rights, cause livelihood disruptions and break up the social fabric of the affected communities. This article focuses on this second aspect and examines compensation and resettlement policy gaps and challenges with respect to the mining sector in Kenya.

Large-scale mining projects lead to involuntary displacement, deprive those affected of the use or access to their resources, disrupt sources of livelihood and interfere with the cultural fabric of the affected communities. International safeguards developed by the World Bank and the Africa Development Bank on involuntary displacement recommend that all community concerns must be taken seriously in the planning and implementation of all investment projects.

World Bank guidelines provide that involuntary resettlement should be avoided and where it is unavoidable, all the people affected must be fully and fairly compensated. Moreover, compensation and resettlement should be seen as an opportunity to improve the livelihoods of those affected. However, the legislation currently guiding compensation and resettlement in Kenya does not regulate these processes in a clear and specific manner.

Take for instance the story of Phase 2A of the Standard Gauge Railway (SGR) that runs from Nairobi to Naivasha traversing Nairobi, Kajiado, Kiambu, Nakuru and Narok Counties, a project which was delayed for three years due to land acquisition and compensation issues.

In the June 22 2019 edition, The East African published stories of human suffering caused by the project. A mother of three, Ms Kusero was promised Sh2 million for her quarter-acre property but a house made of recycled oil drums is all she received as compensation for allowing the SGR to run through her land. Hers was one of many such stories of families whose land was compulsorily acquired for the project. On paper, they were paid billions in compensation but in reality, only a few actually received compensation.

Ms Kusero says that for people like her there were no negotiations and raising grievances regarding compensation was extremely frustrating. “You go to the National Land Commission and you are asked to go to the Ethics and Anti-Corruption Commission. Then you are sent to the Directorate of Criminal Investigation and Director of Public Prosecutions before being bounced back to the National Land Commission. In the end you get frustrated without redress.”

The second story is about the extractives sector and concerns compensation owed by the Kenya Fluorspar Company to the Kimwarer Community in Kerio Valley. After exploration and confirmation of the existence of viable fluorspar, the company excised land and started its mining operations before it had compensated and resettled those it had displaced. There were no consultations whatsoever regarding compensation.

A task force report on the Review of Fluorspar Mining in Kerio Valley established that some attempts at compensation were made. In 1982, two cheques of Sh3,606,000 and Sh500,000 were released by the National Treasury to the District Commissioner to compensate the affected residents. The land compensation value was determined at Sh450 per acre of which Sh50 was deducted directly by the District Commissioner as contribution to a local school fundraiser in the Kimwarer area.

The affected residents who wanted alternative land in compensation were promised they would be resettled on Kilima I and II and Grosell farms in Uasin Gishu. They were also promised that they would receive shares in the Flourspar Company and in the Wagon Hotel in Eldoret town. Those among them who attempted to settle in the promised land were later evicted and accused of invading private property. To date, the victims of these atrocities have not received justice.

Gaps and challenges in the policy and legislative frameworks

Large-scale mining operations require massive tracts of land and often lead to significant human rights violations. Communities whose livelihoods depend on land find themselves in a struggle to defend their rights against the mineral rights granted to investors who are usually large-scale multinationals acting with the full support of host governments.

Kenya’s constitution sets out the general principles of equitable, sustainable and efficient use of land and establishes forms of land ownership. It vests ownership of mineral resources in the government, which means that any land with mineral resources can be compulsorily acquired in the public interest. It further protects the right to property from unlawful deprivation of ownership or limitation of enjoyment unless for public purposes or in the public interest in which case prompt, just and full compensation is required. It is from these provisions that mineral resource projects draw justification to cause involuntary displacement.

Kenya passed a new Mining Act in May 2016 to bolster the legal regime and reinvigorate the mining sector. The Act provides that where a mineral right disturbs or deprives access to the landowner, causes damage to property or occasions loss of earnings, the landowner may claim compensation whose payment must be prompt, adequate and fair.  It doesn’t define what “prompt”, “full” and “just compensation” mean. The mineral rights holder is responsible for all the compensation and resettlement costs.

Moreover, the Mining Act appears to overlook the sensitivity of cultural resources. It does not protect or seek to identify cultural assets. Instead, it provides that no demand or claim for compensation shall be made for any loss or damage for which compensation cannot be assessed according to legal principles. Cultural resources are sensitive owing to the level of emotional reaction they spark when interfered with. They include spiritual sites, shrines, medicinal plants and graves whose value cannot be determined using formal processes but only through consultations and negotiations in good faith. The World Bank’s cultural safeguards on involuntary displacement provide that cultural property should be identified, protected and appropriate actions taken to avoid or mitigate adverse impacts, and that interference with cultural assets may only be justified when the loss or damage is agreed to be unavoidable.

The Land Act empowers the National Land Commission on all matters related to compensation. The Commission has the responsibility to make inquiries and determine interests in the land, receive claims of compensation and facilitate just compensation. It does this on request from agencies seeking to compulsorily acquire land. From 2013 to 2019, the Commission paid-out Sh38.273 billion in compensation of which 75.2 per cent went to the SGR and road projects. Within the same period, neither land acquisition nor compensation was undertaken by the Commission for mining-related projects, which raises the question as to how land acquisitions and compensation for extractives are carried out.

Parliament passed the Land Value (Amendment) Act In 2019 to address concerns relating to compulsory land acquisition, compensation and resettlement. One of the gains in this law is that it defines “just compensation”, “prompt” and “full”, terms that are used in the Mining Act, the Land Act and in other laws without clarity.  Accordingly, “Just compensation” means a form of fair compensation that is assessed and determined on the basis of the criteria set out under the act. “Prompt” means within a reasonable period of time but not more than one year after the Commission has taken possession of the land. “Full” means the restoration of the value of the land, including improvements made on the land at the date of notice of acquisition.

It is to be noted that unlike in the past where the NLC was required to compensate the landowner before taking possession, the Land Value law now allows possession of the land before compensation is paid. This is contrary to the Mining Act which provides for prior payment of compensation. Taking possession before compensation would disadvantage the affected persons and the one-year period set for paying compensation is too long especially for large-scale mining projects that normally deprive the owner of use of property such as farmland, homestead and grazing areas. The World Bank standards require that compensation is paid in full before displacement or restriction of access.

The Land Value law also provides criteria for assessing the value of compulsorily acquired land based on a land value index to be developed by the Land Cabinet Secretary in consultation with county governments and approved by the National Assembly and the Senate. Assessing land value for compensation purposes requires wide consultations with the affected persons and the relevant agencies, which this Act does not seem to embrace. As provided for, the development of a land value index excludes the participation of the National Land Commission, land valuation agencies such as Surveyors of Kenya, government ministries such as the Ministry of Petroleum and Mining whose main work causes involuntary displacement.

Key issues and action required

The first issue is the fragmentation of the legal frameworks that guide compensation and resettlement in Kenya. The country lacks a national compensation and resettlement policy that standardises compensation and resettlement and ensures that all socio-economic and cultural issues arising from involuntary displacement are properly addressed. The national policy framework on compensation and resettlement should be developed taking into consideration international best practices and safeguards to provide a harmonised policy direction that considers all the complexities that come with involuntary displacement. The policy framework should broadly articulate compensation and resettlement in such a way that it is understood to be an opportunity for improving the livelihoods of the affected people rather than as a process to subjugate them and worsen their livelihoods. At the very least, regulations on compensations and resettlement should be developed for the Mining Act.

The second issue is the uncoordinated institutional approach for compensation matters. The National Land Commission takes charge of both land acquisition and compensation based on requests and funds from the acquiring agencies whose roles are often unclear. The suggested national policy should provide a clear framework for institutional coordination and harmonise the efforts of all relevant agencies; compensation and resettlement must be a multi-agency function. In this way, overlooking community concerns will be minimised and, more importantly, the processes will be more transparent and less fraudulent. Effective institutional coordination will also enable an integrated grievance redress mechanism.

The third issue concerns the land survey regime; it is mired in corruption, inherently opaque and exploitative. Compulsory land acquisition heightens emotions and ignites serious land speculation perpetrated by public officers with privileged information who collude with greedy elites to defraud the state through inflated land prices.

Reforms to introduce transparent land surveying and valuation are required. This means strengthening the policy frameworks and the institutions involved and also requires a robust mechanism for monitoring compulsory acquisition, compensation and resettlement. It should become policy that a compulsory land survey is undertaken prior to the compulsory acquisition of any unregistered land.

The fourth issue is the absence of cultural resources as a factor of compensation and resettlement in the available legislations. Disruption caused by extractive projects on the social, economic and cultural ecosystems of the affected people can never be truly compensated or restored. Compensation merely helps the affected persons to continue with their livelihoods but does not and cannot restore their exact loss.

Legislations guiding compensation should clearly recognise cultural resources and all assets with cultural meaning and value for the affected people as an aspect of the process of negotiating compensation. Effective community participation must be allowed in identifying and deciding the compensation for cultural resources that may be affected by mining projects.

The final issue has to do with the procedures for paying compensation. Where the project affects the whole family, it is unclear whether compensation is awarded to an individual or to a household. Capacity building for the beneficiaries on the use of finances is also a concern and because it is rarely undertaken, waste of compensation funds, family disintegration, homelessness and other socio-economic concerns ensue. Support mechanisms to ensure effective financial planning are therefore important.

The lack of a mechanism to monitor the payment of compensation is another concern, leading to serious irregularities, corruption and human rights violations. Furthermore, the approach to dispute resolution needs to be harmonised to recognise structures at the county level. As they currently stand, the Land Act, the Mining Act and the Land Value Act are inherently contradictory.

The article is done with support from Diakonia Kenya Country Office under the Madini Yetu Wajibu Wetu (Our Minerals, Our Responsibility) Project. Views expressed in the article are those of the author.

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