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Reflections

Accept and Move On: The Handshake’s Hollow Cure for Decades of Communal Loss and Grief

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Prior to Dr. Odhiambo Mbai’s death, the concept of being a Luo in Kenya, though occupying most of my early childhood, was abstract. I knew we had issues with the government and we were paying a steep communal price for it. My young mind could glean from the heated political discussions in our household that Luos were engaged in perpetual struggle with powers that were perceived to be the Government of Kenya.

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Accept and Move On: The Handshake’s Hollow Cure for Decades of Communal Loss and Grief
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In the year 2003, when I was a second-year student at Kenyatta University, news of Dr. Odhiambo Mbai’s assassination broke. It was a time in Kenya when political tensions around constitutional amendments were rising like dark ominous clouds, engulfing the national psyche.

Dr. Mbai was the opposition’s lead in the negotiations that were taking place around the new constitution. It was a quiet day at Kenyatta University before a loud war cry tore through the morning air. Someone must have heard from the news on the radio or watched breaking news on television in the common room that Dr. Mbai had been murdered.

Upon hearing the news, we ran out of our lecture halls onto Thika Road, blocked it, and exploded our anger on innocent unsuspecting motorists. Thika Road was our coliseum, a place where we found some relief from the bloody plays we had with Kenya’s riot police. We needed to be heard by our government, and we were following a script that the government had taught us. To survive, one needed to be faster, more ruthless and more efficient than a government that took pride in its monopoly of corruption and brutality.

In the next few days, Thika road would be full of all sorts of debris, blood and tear gas smoke. We wanted to know why Dr. Mbai was killed, and who was responsible. We would have not protested, but Kenya being a place where justice is as scarce as life-saving medicines in public hospitals, we needed to register our anger somehow.

Most of us did not care much about the details of the constitution. It sounded like a bulky document, too complex and beyond the comprehension of the common Kenyan. It was, like any political tussle, defining the fault lines along tribal affiliations. My major attraction to it was that Raila Odinga and many other progressives were behind it. And that Dr. Mbai had paid with his life for it. And that two of my comrades, one from the same hostel as me, had been shot during these riots. In the midst of all the tear gas and gunshots, I knew I was living some realities that I had only watched on television.

In the following weeks, we succeeded in forcing the university to provide us transport to Mbai’s funeral. At the funeral, we were met by multitudes of people mourning in confusion, anger and loss. Many had walked on foot from afar, in the hot tropical sun, to join in the mourning. I am not sure if these personal sacrifices were inspired by a strong sense of connectedness to the struggle or some form of communal kinship.

At the funeral, I ran into my younger brother, who had traveled from Moi University. There was something eerily familiar at this funeral. I felt like I was walking on a path I was aware of, one that my grandparents and parents had walked before. It was one darkened with an engulfing sense of loss and helplessness of an entire community.

I went home later that day and I sought out my grandfather. As an ardent supporter of multi-party democracy, and by extension Jaramogi Odinga and then Raila Odinga, I wanted to hear his thoughts. I was also seeking comfort in his eyes that had experienced similar pain. We would take turns swimming in the sea of communal grief. He counted on his fingers and toes the numbers of young, industrious and pioneering men from the Luo community who had been assassinated since the community migrated with Odinga into the opposition. This decision would start a quest for power and democracy, a quest that would turn the community into a hunting ground for a bloodthirsty government.

***

Prior to Mbai’s death, the concept of being a Luo in Kenya, though occupying most of my early childhood, was abstract. I knew we had issues with the government and we were paying a steep communal price for it. My young mind could glean from the heated political discussions in our household that Luos were engaged in perpetual struggle with powers that were perceived to be the Government of Kenya. I was also aware that prominent members of the Luo community were under active persecution.

In this environment, it was a burdensome task reconciling my national identity with my ethnic identity. Tension was always in the air, in the daily news bulletins, in the local dailies. It was dangling precariously in our household too, ready to drop at the dinner table and explode into emotional political diatribe. I could feel the tension in my father’s vociferous lamentations about the systematic exclusion of Luos from the national government. The people in the government were eating and we were poor. Our time would come. Before that, we needed to consolidate all efforts behind Jaramogi Oginga Odinga, and Raila Odinga thereafter. The two were the only anointed vehicles for our economic and political emancipation.

I knew that efforts at consolidating an entire community were met by ambivalence in some sections. The debate about opposition politics being a Luo agenda or the Odinga family’s ambition was a topic that was approached with utmost care, lest one slide and fall into the unwanted pile of traitors. This was a no-go zone unless one wanted to pry open community scars, like Tom Mboya’s assassination. This debate also always ended with someone yelling the word traitor at another person. The same word, traitor, was yelled in our household whenever a Luo accepted a cabinet appointment from President Daniel arap Moi during the infamous one o’clock news bulletin on KBC.

I knew the region we occupied, the vast Luo Nyanza that straddles the shores of Lake Victoria to the sugarcane belt, was deliberately marginalised. The roads were broken, the hospitals bearing the greatest weight of malaria and HIV were subjects of justification by NGOs for grants to save the people. Kisumu residents, seated on the shores of an expansive lake, were thirsty for liberation and for clean water to drink.

One of these traitors was Ojwang’ Kombudo. When Kombudo expressed support for Moi – an action that required public prostration with effusive praises lathering on Moi – he became a traitor. His support for Moi introduced the community to the good life that came with support for Moi, KANU and the government – his constituents in Nyakach enjoyed a short period of piped water and electricity. Like a pimp, Moi had his hand firmly on the Kenyan cookie jar, opening it to dish goodies to his cronies, with the most subservient getting the most, including opportunities to loot public funds.

Kombudo did not last long. In 1992, a wave of opposition gripped Luoland to the last man. Denis Akumu from Ford-Kenya replaced him. President Moi got into a fit of rage, sent government people in uniform to remove water pipes, including the ones that were at my grandfather’s gate. Electricity poles were not spared either. Once again, like a political pimp, Moi and his government were reminding the Luo community of the costs of supporting opposition. The remnants of broken pipes and vandalised water points, including one just near my grandfather’s homestead, serve as a reminder of the costs of voting against the government of the day.

In addition to marginalisation, there were deaths too. The first one I learned of was that of Argwings Kodhek. (I had an uncle named after him though I did not know the weight of memory that the name carried.) I came to learn of its significance listening to the songs of Gabriel Omolo, a popular Luo musician. In a deep sonorous voice, with each beat punctuated with pain, Gabriel mourned Kodhek. As if his lyrics could bring Kodhek to life, Gabriel pleaded with Kodhek’s killers to let Kodhek enjoy the fruits of his toil. It did not help that my grandfather played this song every other weekend before gazing deeply into the landscape of Nyakach – a landscape at the mercy of soil erosion, its nutrients washing away helplessly, just like the Luo community that was getting wiped out by the ferocious forces of multiparty politics and repression.

This would all end. There was a religious conviction that all these sorrows would be magically washed away when one of our own got into power. It was, therefore, imperative that the community united to the last man in support of the Odingas.

The communal wound from Argwing Kodhek’s mysterious death had not yet healed when six months later, Thomas Joseph Mboya fell to an assassin’s bullet in Nairobi. Mboya’s star shone far beyond Kenya. His wide and deep influence was evident in his friendship with influential Americans, such as John F. Kennedy and Martin Luther King Jr. He was also the first Kenyan to grace the cover of Time magazine in 1960. His assassination, therefore, not only sent shockwaves around the country, but internationally as well.

Within Kenya, Mboya’s assassination sent a chilling reminder to young ambitious people that no one would be spared when Jomo Kenyatta’s presidency was threatened. My grandfather bemoaned how Mboya’s rich connections, as well as his prominence in the government and abroad, could not save him. Mboya’s death continues to be one of the biggest “what if” moments for the Luo community. What if he had lived? What if he had never gone to that pharmacy on Government Road (now known as Moi Avenue)? What if he had joined the opposition with Odinga? The threat was real, whether in government or in opposition. It did not matter where one’s star shone. It only mattered that its shine did not threaten the status quo.

The Luo community persisted after these assassinations. There was a shared belief that Kenya needed change in leadership and assassinations would not break their zeal. The differences between Jaramogi and Jomo Kenyatta continued to fester like a cancerous wound. Four months after the assassination of Tom Mboya, Jomo Kenyatta made a two-day historic official tour of the region, ostensibly to familiarise himself with development projects there. The Luo community, still mourning Mboya, rebelled. Kenyatta’s guards reacted violently, shooting dead 11 protestors.

The extent of communal loss between January 1969, when Argwings died, to Mboya’s assassination in July of the same year and the Kisumu massacre three months later pointed to a systematic attempt at violent subjugation of the Luo community. The occurrences of those days are passed from generation to generation as a slow and painful narration of how the government killed Mboya, then came to our town and killed more when all we needed was to be left alone.

This year marks fifty years since those fateful events. The people who lived through that period, like my grandfather, have very hardened souls and a very strong suspicion of the government. It does not help that during each election cycle, regions occupied by the Luo community become over-policed and over-militarised and young people of the community become fair game when elections results are disputed.

***

I was only six months old when the coup failed. A good number of the soldiers involved were from Nyakach, my maternal grandfather’s home. And their misguided ambition had thrown the community into the dark underbelly of Kenyan politics.

As expected, the failed August 1982 coup entrenched government paranoia of young Luos. President Moi’s government essentially implemented systematic exclusion of young people from Luoland and other communities perceived to be sympathetic to the opposition from recruitment into the police and armed forces. This was a big blow to the quotidian life of the community. In a struggling economy with a rapidly growing population, the armed forces and the police provided sources of income and employment to healthy young people. By blacklisting young men and women from the Luo community, the government imposed a form of official economic depression on this community as an additional tool aimed at forcing them into political subjugation.

There were other deaths of note at the time when Raila was placed in detention after the attempted coup. The most prominent of these in the mid-1980s was that of the Gem MP, Horace Ongili. The immediate former area MP, Otieno Ambala, one of the leading suspects, was arrested and charged with the murder along with six other suspects. However, after a few months in jail, he collapsed and died of a heart attack. There was a feeling within the community and across the country that he too was killed to shield the real killers.

Nonetheless, this tragedy robbed the Luo community of two prominent leaders within a span of six months. This was a scary déjà vu moment, since Kodhek and Mboya had been assassinated approximately six months apart. The community felt that the government was eliminating prominent Luo males or imprisoning them in order to subdue the community’s will to fight. The government seemed to be reading from the same script that the colonialists used against the Kikuyu and other communities fighting for independence in Kenya.

In the early 1990s, as the opposition was gaining a very strong foothold in western Kenya, Dr. Robert Ouko’s star started rising within President Moi’s government. Dr. Ouko’s presence in the government meant that Moi had started looking at Luos in a slightly better light. He began visiting schools and dishing money in big brown envelopes during harambees and to delegations that visited him at State House. The benefits of “having our own” closer to the presidency was becoming evident.

This did not last long. In February 1990, Dr. Ouko was abducted from his home and killed in one of the most gruesome cases Kenya has ever witnessed. The Luo community’s grief was palpable. I was only eight years old and I remember violent riots in the streets of Kisumu. I remember my dad pacing, gesturing and talking with my uncle, who was a university student then, late into the night, angry at something. All universities were closed as rioting students burned their grief and rage in bonfires of lament. When Moi decided that he would forcefully attend Ouko’s funeral accompanied by hundreds of armed riot police officers, university students chanted to Moi, “You killed him, you burnt him, now eat him!” Another prominent Luo, Hezekiah Oyugi, who was the Minister for Internal Security, died in mysterious circumstances two years later, in June 1992. Ouko and Oyugi, like Mboya, were not spared, despite the fact that they were staunch supporters of the government.

In 2007, I directly witnessed loss in the form of post-election violence resulting from disputed elections. My job as a public health researcher in Kisumu exposed me to untold community suffering. In the free medical camps that had been organised by local NGOs, men and women, thousands in numbers, would show up with bodies broken and maimed by bullets. It was like a scene from what I imagined a war-torn country to be. I did not talk about these horrors with my grandfather because they overwhelmed me. They were close, inescapable and frightening.

During the 2017 elections, not much had changed. The violence continued, with over 300 people, even young children, dying from police violence. Several hundreds were shot and maimed too.

A couple of weeks before the August 2017 elections, Chris Msando, an ICT Director at Kenya’s election commission, was abducted, tortured and killed before his body was dumped in a forest. Again, there was another chilling reminder that there was a price to pay by anyone who was perceived to be an impediment to the status quo. This was almost fifty years after Kodhek and Mboya’s assassinations, and targeted killings have not stopped.

***

One of my early childhood memories is when Raila Odinga was released from detention in 1988. As a child, I was fascinated by my grandfather’s surprise that Raila did not die in prison. Most people, having known how ruthless Moi’s regime was, had expected Raila not to survive jail. I could sense massive euphoric relief when Raila walked out of detention alive. My grandfather regaled me with tales of how Raila’s magical powers saved him. How he could turn into a fly on a wall in State House and listen to plans to assassinate him. They said he would then fly back to prison and surprise his killers with his knowledge of their plans beforehand, throwing them into total confusion.

Then there was the swearing-in ceremony of 2018, and the lack of charges against Raila when others like Miguna Miguna continue to be forcefully exiled. Was this also due to Raila’s magical powers? Or was it a result of a savvy politician levering fanatical support from the community as insurance and a bargaining chip for personal political ambitions? This is where the lines get blurred. When we cannot clearly delineate the boundaries of communal ambitions and individual ambitions, it is hard to tell what we are giving our lives for.

And at the end of the road, when we weigh all the losses – both physical and emotional – and place them on a scale, and then measure them against the recent handshake and the public display of brotherly love between Raila and Uhuru, do we see a perfect balance? No, there is no balance. And there will be no restitution. Not even an apology or acceptance of blame for all these deaths.

The weight of communal loss is always borne privately, silently and sometimes in shame by the poor. There are no monuments that can adequately capture all the losses the Luo community have experienced in the last fifty years.

And what if the community would have known that the path to this political and economic utopia could be forged by a handshake? Would the community have protected their youth better? Would they have stopped them from the suicidal choices of fighting with memory, anger and stones on sisal slings? Standing bare-chested before barrels of Kalashnikovs held by government-sponsored killers?

But then again, what options did we as a community have? At the end of the day, we are all Kenyans, burdened by our peculiarities, such as the ability to accept anything and move on to the next tragedy.

That is what happened after the handshake – everyone put a bandage on old and fresh wounds. The magical mantra “accept and move on” is being repeated again and again until everything looks like a distant memory.

But I can’t stop knowing what I know.

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Norbert Odero is a Kenyan author, writer and scientist based in the USA.

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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