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The Ones Who Are, But Don’t Exist: Being Nubian, and Kenyan

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It is so absurd, to the extent that without an ID, one cannot legally die, which is what happened to my father. He does not have a death certificate because he did not have an ID. The state neither recognized his life nor his death – he never existed.

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The Ones Who Are, But Don’t Exist: Being Nubian, and Kenyan
Photo: ACNUR/G.Constantine
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When I was in high school, one of my uncles asked me if I had a boyfriend. It was a typical question that many of our parents or relatives ask at this rather awkward period of our lives. The conversation remained a playful exchange until my uncle got really stern and told me this: “Before you get into a relationship with someone, make sure they have an ID.” At the time I thought that remark to be rather odd, and didn’t know what to make of it. I dismissed it with the thought that maybe he was under the influence or maybe it was just a recommendation that adults give based on their personal bias such as “make sure they are God-fearing.”

I never thought much about national identification cards until it was time to get my own. I had never heard of any odd stories around securing this document, the legal evidence of initiation into adulthood. My cousins and older friends before me had had a fairly easy time, so I never imagined that it would be an experience that would change my life forever, or one that I would be writing about five years later.

The beginning

On the morning I went to apply for my ID, my mother, a very organized person, had prepared a folder containing the documents that were required by law. We went to the chief’s office – a walking distance – chatting and laughing as she teased me about what “adulthood” meant. We got there and there were a few young people, so I went in, oblivious of what would happen. My mom seemed a bit nervous but I was very excited. I was thinking of all the things I would be able to do; drive, travel alone, go out dancing, drink… She gave me the documents and I went into the application room, not knowing that I would come out a different person.

My father had died in 2007, seven years before I applied for my ID. I was aware that one of the requirements for the application process was copies of your parents’ identification cards and my birth certificate. The folder had a copy of my mom’s ID and my birth certificate. My father’s ID was not there because he didn’t have one.

When the chief asked me about my father’s documents and his ethnicity, I didn’t know what to say, because I was unprepared for any kind of interrogation. Actually, I didn’t even think that I was going to interact with the chief in any way. I had expected to be given forms, fill them, have my biometrics taken and go home in time for lunch, with my interim ID in hand. I called my mom into the room and had to witness her saying that my father never got an ID after decades of applying, because he was a Nubian and somewhere along the way, he gave up. In that moment I was being exposed to this kind of alternate existence that had not been a part of my reality but would affect how I saw everything from then on. For so many years, my mother had hoped that by the time I was applying for this document, that things would have changed and that I wouldn’t have to go through the humiliation that she witnessed my father go through for so long. She tried to explain the situation to the chief, but he dismissed her by saying “all foreign tribes must be vetted…huyu itabidi vetting.” (She will have to be vetted). The walk home was silent and heavy. My mother was teary and I was quiet.

Nubians were brought to Kenya from Sudan in the early 1890s to serve as soldiers in the British army under the Kings African Rifles, first during the building of the Uganda railway and second, in the First and Second World Wars. The British denied the Nubians the freedom to return back to Sudan after demobilization, and then categorized them as aliens, a label that has since been perpetuated by consecutive post-independence governments. Because they weren’t allowed to go back to Sudan, the British allocated the land that covers present-day Kibera to the community to settle on, but their status as “aliens” has meant that there can never be any legal documentation to show that the land in Kibra is, to my generation, Nubian ancestral land. This, in turn means that the state can and has refused to legitimize the rights of Nubians, keeping them in a permanent state of stagnation, which benefits powerful elites.

My father was Nubian. This label didn’t mean much to me in the sense that I never thought that being Nubian would shape my lived experience in any significant way. I just thought I was just a child, a person, a Kenyan. Outside of my grandmother’s house, this Nubian identity was basically an inconsequential part of who I was. Growing up I just found it strange, fascinating and finally tiring when people would ask me if Nubians were Kenyans, having never heard people asking Kikuyus or Kambas whether they were Kenyans. With my limited view of the world I just thought it was a game of popularity, like how we had the popular guys in school, who everyone knew, and the ones who were not so popular, but were still part of the school and still enjoyed the structural providences. So, Nubians, like the Mbeere and the Pemba, were just few in number and perhaps not well known, and my assumption was, even though these groups of people lacked social capital and recognition, they very much enjoyed all the rights that all other Kenyans enjoyed.

I did not know what vetting was or what it entailed in this case, and frankly, I had never heard of it. The chief had given us a piece of paper, on it, a list of documents that I was to produce to prove I was Kenyan enough for an ID. The list absurdly demanded that I bring; copies of my grandparents’ (dad’s parents) identification cards, my father’s death certificate, primary school and high school transcripts, my immunization card, and most surprising of all, a copy of the ID of our building’s caretaker, accompanied by a signed note saying that he knew me and that I was resident in the building I claimed to live in, for an extended period of time. There was also mention of appearing before a ‘council of elders’ and paying a fee to a magistrate.

By then, I had figured out that what I was being subjected to was not standard procedure, but an act of institutionalized discrimination. I had been asking my friends about their experiences, and they all seemed to have flawless experiences. Most of them praised the government for “making the process easy.” On the other hand, my Nubian cousins weren’t even trying to get IDs. They already knew that hurdles were too great.

To the government, it was clear that Nubians were not human, because to be human is to belong. “At the age of 18, your life as a Kenyan stops” one Nubian youth from Kibra lamented. “It is only when you apply for an ID card that you realize you have been living a lie. This country does not want you, and the years you have spent here are all a farce.” Without an ID, one cannot register their sim card, therefore access to M-Pesa or any other form of mobile banking is impossible. One cannot vote, cannot access government buildings, cannot obtain a passport, cannot apply for jobs, higher education or even acquire a driver’s license. It is so absurd, to the extent that without an ID, one cannot legally die, which is what happened to my father. He does not have a death certificate because he did not have an ID. The state neither recognized his life nor his death. In the eyes of the state he never existed. To me, this is what statelessness truly means. The right to live and the right to die and the right to belong are taken away, without being granted in the first place.

Proving my humanity

Nubian youth today go to great lengths to get a chance to even apply for their identification cards. Many lie about belonging to other tribes, mostly the “popular ones,” many save up in order to afford to bribe officials in the many different offices they will likely have to go through. All this because the Kenyan state gets to play a game of the politics of exclusion and inclusion, who is “in” and who is “out”, but these acts have real implications to real people whose lives begin to be defined, first, by statelessness before they can claim to be anything else.

I have a great uncle, who by several untruths, social connections and stubbornness, was able to obtain an ID many years ago. His single ID caters to every official need that people in the family may have. Any dealings with the Kenyan government and he’s your guy. People depend on his vote to speak for many. Many M-Pesa transactions go through him. He takes people’s children to school; his bank account is basically communal. So this uncle’s details are the ones outlined on my father’s burial permit. The one legal document that bears my father’s names is his burial permit, written in my living uncle’s name, with my uncle’s ID number.

Back to my application for an ID. On the day that I returned to the chief’s office, I wasn’t hopeful. I wasn’t excited. I was dreading the humiliation of having to prove the only nationality I knew, in front of many people. I went with all the documents that had been demanded for the vetting process, except the death certificate which didn’t exist, and my grandparents’ IDs which also didn’t exist. Standing there, being talked down upon and ridiculed, all I could think of, strangely, was the caretaker. I had spent the week chasing him all over the estate. Once I explained the reason why I needed his help, he became too busy, an act he put up in order to get a bribe out of my mother and I. Being a heavy drinker, he always asked for “pesa ya kachupa”. I always said I didn’t have the money. Then he would get angry and tell me to look for him the next day. This went on for a couple of days until he finally gave me his ID which I photocopied and the next day he wrote a brief note, signed it and I attached it to the copy of the ID. The day I was going back to the chief, I met him at the gate, sober, telling me that he knew the chief. I didn’t know what that meant, but I saw my mum giving him a 200/- shilling note. Standing in front of the chief, I now knew what he meant. He could unravel this whole process just by his word of mouth. I felt so small and dispensable, like my life was hanging in the hands of these men who had more citizenship than me.

The chief sent me home, and as I was walking back, I was trying to think of all my family members; maybe I have lawyer cousin that I didn’t know about? I needed a lawyer, and I knew legal fees were expensive. See, the chief said the documents were insufficient to prove anything. The caretaker’s note was there, my mum even managed to find my immunization card, all my transcripts up to my final year of high school were there, but he said that the documents that were missing were the most important. So he advised that I seek the services of a lawyer in which I would swear an affidavit that my father died not being a citizen of Kenya, and that I was aware of this and was ready and willing to take the ID using my mother’s details only. This was to me, a protest to my protest. Here I was, trying my best to prove that I belonged, holding on to everything I knew about myself, but being told that I am not who I know I am, my life being unraveled, in an embarrassing and truly heartbreaking manner.

When I was turning 10, a year before my father died, my mom threw a birthday party for me. Till this day, even in the pictures, I have tears in my eyes because my dad couldn’t make it. I wanted him there so bad. He was my dad. Here I was, at 18, being asked to erase his existence in order to exist myself. I couldn’t process it. I just couldn’t. I always want him to be with me, and my country was asking me to wish away someone that I was part of who I was because of the favor of belonging; of legally obtaining the Kenyan identity.

My mum wanted me to get the process done as soon as possible, because like any mother, she wanted to see my life moving. You don’t realize how hot Nairobi is during the dry months until you have to walk up and down Argwings Kodhek Road looking for an affordable lawyer. Luckily my mum remembered one of her friends from church who was a lawyer. She got his number from his wife; we called him up and were able to locate his office just before 3pm. We explained everything, and while he was baffled, he prepared the affidavit and I signed it soon after. I was soon back home but I was wondering if all those feelings were worth the trouble of trying to be a Kenyan.

I have heard stories of Nubians today only being allowed to apply for IDs on Tuesday and Thursday from 9am -1pm on each day, with only three government officials serving thousands of young and old Nubians. Other people from other tribes can apply on any day at any time that falls within the business hours. My father’s mother has been sick for decades. She had a growth in her abdomen that requires very specialized and expensive care. She doesn’t have an ID, therefore she can’t access insurance services. She knows she is in pain because she doesn’t possess any form of proof of citizenship. Hearing about this time that has been set aside for Nubians to apply for identification cards excites her, and she is happy at the prospect of more of her people being recognized as Kenyans and participating in society. She does not know that this process is just an extension of the injustice orchestrated by the oppressor, because the person who denies you your humanity cannot turn around and give it to you in small doses at their own convenience and by their rules. It is false and inhumane for a part of the population to be made to feel like their access to human rights is a favor and the little attention they are given, a privilege.

Where life stops

Like other Nubians, my uncle, the youngest of four sons, married outside of the Nubian tribe, hoping that this would mean that his children would have better chances of legal belonging. Creating a situation where people would rather marry outside of their tribe so that their children may have a chance of legally existing, is by design, ethnic and cultural genocide. My uncle was in a relationship with a woman from a different tribe, with whom he had a child and lived together. The girl was hiding her relationship from her family because of fear of their disapproval. Unfortunately, one way or another, her family found out and they forcefully removed her from my uncle’s home and took her, and the child, back home. Their reasons were that they had heard that Nubians are lazy; they sit around all day, without jobs and at the risk of deportation because they are not Kenyans.

A couple of years ago, another of my uncles, a father of three sons, was suddenly left by the mother of his children. She was frustrated by his lack of a steady income. She left him with the children, and we received word that she was married elsewhere. He would die two years after, because of lack of access to proper healthcare. He died still waiting for his ID application to be approved so that he could apply for insurance.

My uncles’ stories are testimonies of real life consequences of the evils of the state. This lack of legal identification affects more than just the one individual seeking the document. Many Nubian people are not able to provide for their families. They are left feeling that they are not doing right by their spouses, their children, and themselves. The situations that Nubians find themselves in are locked in by helplessness and despair. It is not my uncles’ faults that they are not able to even have the opportunity to have steady sources of income. When I see Nubian men, young and old, seating around their houses, playing draughts, I see men whose ability to affirm themselves has been taken away. So they carry their politics in their bodies. They talk to exist, to pass the time and fill the void of uncertainty. They talk, therefore they are. When I see my uncles, I don’t see ‘lazy, unmotivated’ people, which is a dominant narrative about the Nubian people. This stereotype is, behind the scenes, advanced by the difficulties faced in obtaining identification. When you don’t legally exist, legally love, legally die, when you don’t legally belong anywhere, it is easy for narratives about you to be formed and advanced by the people who belong. They have the voice, you don’t.

On the day that I was to pick up my ID, I was nervous about being turned away. It had been a couple of weeks of back and forth. After the humiliating vetting process where one man on the council tried to get me to sing the national anthem in Kiswahili, I just knew if I had to go through one more hurdle, I’d weep and probably just give up on the process all together. As I was standing in line, I thought about how I was being forced to basically denounce my father in order to be a ‘real Kenyan’. I wondered if that was the price I had to pay, and if any of it was worth it.

When I got home, I showed off the new shiny plastic proof that I was a human being worthy of being seen and heard to my mum, my cousins and my aunties. They were very happy. Getting this little thing was such an achievement and they all congratulated me for “keeping steady”, “staying strong” and “doing all it takes.” An outsider listening in might have genuinely thought that I was participating in a vigorous Olympic activity. And isn’t that absurd? I was just trying to drive and drink and party, and perhaps vote. It’s absurd. Every time I look at my ID card I feel like I am looking at the absurdity of it all. I hate being in situations where I am asked to ‘show ID’. It’s traumatic because it’s a symbol of the humiliation and the pain, and it hurts even more thinking of all the young Nubians who do not have the loopholes that I had, like having a mother of different ethnicity, or having gone to a national school which somehow made my transcripts more credible.

My grandmother is very happy that I was able to get an ID. She says that I should thank God for my mother, that I should be happy that I can participate in society, legally marry and legally die. When I go to visit her in Kibra, I pass the mosque at the corner, the children playing in a small open field next to a pile of garbage, the old men seated outside seemingly staring at nothing, the young men playing draughts next to the women painting beautiful henna patterns on each other. Sometimes I am unable to figure out if the glint in my eyes is my tears, or the glare from the shiny new apartments being put up by private developers, shiny like my new ID. I am lost to the realities of this place, Kibra, where people exist but not really, where nobody in the real Kenya knows the young men seated outside playing draughts are waiting for casual labour here and there, and the old men are seated in silence because there is nothing left to say, they have been talking about the same things for generations. My grandmother’s house is no longer a place where I excitedly go eat ngurusa and spicy beef while listening to taarab and her long stories. Now, it is a place where “real” life stops and everything happens day to day, because there is no security in thinking of the future. The future is a luxury left for ‘real’ Kenyans.

I have lecturers who, when I talk about Nubians in class, will still ask me where “these people” are from. There are adult Kenyans that don’t know the existence of Nubians in Kenya. During the census, we are grouped as “other.” Sometimes with my generation, when I say I’m Nubian, it is taken as a celebration of “blackness” and “authentic Africanness” because the word does not resonate as an ethnicity but as a label used to celebrate dark skin, kinky hair and non-European features. With my mum’s side of the family, my Nubian-ness is seen as the latent threat that may erupt one day and deny me opportunities that would have been accessible to me had my mother fallen in love with a person from the “right” tribe. On my dad’s side, my Nubian-ness is the thing I rejected, so much that I denounced my father’s involvement in my life – his entire existence – and took an ID claiming to only be my mother’s tribe. For me, it is the arrow in my heart. It does not pierce, it will not come out. I can feel it there, a constant reminder of a feeling I want but don’t know how to get, a feeling that I have but can’t seem to get rid of. It is my baptism by fire, my lens through which the world began to make sense through pain and contradictions.

To belong, and claim identity, in the Nubian Kenyan context, is to have privilege. It means that because you belong, you have the luxury to dream, to hope, to love. It means that you can participate in conversations around higher education, politics, health care, insurance, life, death. It means that the justice process is accessible, it means that you can live naturally as a human being, able to fully participate in choice, building community and that the possibility of dignity is a reality that is available. My uncle’s main concern that I end up in a romantic relationship with a person who has a national identification card was his way of taking care of me. It was his way of saying that he wanted me to have a chance at hope, at dreaming, at living as a person free of the complexities and humiliation of alienation.

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Kedolwa Waziri is a writer and a student of dance and literature. Her work lives at the intersection of social justice, art and feminist politics.

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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