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In Search of Grandmother’s Osuga Seeds

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OYUNGA PALA mourns the loss of indigenous crops and farming methods that were buried by capitalist modes of production that focus mainly on high yields and profit.

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In Search of Grandmother’s Osuga Seeds
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They tried to bury us, they didn’t know we were seeds.

This poignant quote is attributed to the Greek poet Dinos Christianopoulos. It formed part of a defiant response to the Greek literary community who criticised Christianopoulos’ poetry as provincial. The poem is part of a collection translated into English by Prof. Nicholas Kostis (1995). The original text read…

What didn’t you do to bury me
But you forgot that I was a seed.

True to text and like a seed, those lines have sprouted many versions of that phrase as mainstream metaphors for resilience and hope in the face of injustice, where individuals or groups of people go up against systems that are designed to bury them.

My own paraphrasing of those famous Christianopoulos’ lines would read:

They tried to bury us, we survived but we lost our way and forgot we are seeds.

The importance of seeds, and indigenous seed cultures, in particular, is a lost consciousness among the contemporary generation of African farmers. The introduction of hybrid seeds in post-colonial Africa progressively altered farming cultures and food systems. Commercial and certified seeds accompanied by a retinue of inputs, fertilisers, pesticides and the promise of high yields but only good for one season, have entrapped rural small-scale farmers in exploitative systems of the dominant agro-industry. Indigenous plant genetic varieties have lost significant ground to hybrid varieties, and consequently, the disappearance of indigenous food cultures and seed knowledge.

Discovering my roots

My own awareness of this crisis evolved over decades. I was brought up in a middle-class family, sojourned in Nairobi, chasing the Kenyan dream. My parents had one foot firmly planted in the ancestral village home, back in Gem, Siaya county.

As second-generation labour migrants to Nairobi, my parents arrived in post-independence Nairobi to secure residence, courtesy of the civil service, in the formerly “white” sections of the city. In these new upper-middle-class spaces, backyards were for recreation and not farming. Nonetheless, my parents never lost touch with their roots, perhaps informed by their acute awareness of the politics of belonging in Nairobi. The capital city was a marketplace where capital was accumulated and transfered from the centre back to the deprived margins. To augment the living costs of large households in the city and establish a security blanket in the event of political dislocation, they maintained a steady link with rural homes.

The importance of seeds, and indigenous seed cultures, in particular, is a lost consciousness among the contemporary generation of African farmers.

My father took us to the village every school holiday without fail. We learned to farm, mainly cash crops (maize and beans) as the staple. It was a labour-intensive crop when planted at scale without the aid of mechanisation.

My father was a civil servant securing measure of comfort after retirement and the loss of government perks. He invested in mono-cropping modern systems focused on high yield and scale for profit. It was during these excursions that I began to understand the clear gendered distinction between how men and women farmed. Men approached farming from a capitalistic frame modeled on the colonial imagery of “I had a farm in Africa” – that famous line by Karen Blixen in the book and movie Out Of Africa – while the women engaged in peasant farming, often associated with allotments around the home dominated by indigenous vegetables.

My grandmother’s permaculture garden

While seasonal farming of maize was a group family activity, my grandmother maintained a garden located outside her kitchen throughout the duration of her life. The kitchen garden was distinguished by plant diversity and the presence of diverse categories of food. Fruit, tubers, bulbs, rhizomes, an assortment of vegetables, fruiting creepers, medicinal herbs, spices and some grain.

Every plant in her garden had a function. To the unaccustomed eye, it appeared to be an unkempt and overgrown allotment, in stark contrast to the neat rows of maize that occupied our family’s three-acre farm. My grandmother practised an alternative style of farming that involved no pesticides, save for firewood ash, minimal tillage, composting and the allotment remained productive throughout the year. My grandmother’s generation employed permaculture principles that Bill Mollison, the Australian educator and co-founder of permaculture, brought to popular consciousness. Her philosophy of food production is captured in Mollison’s articulation of permanent agriculture.

“The greatest change we need to make is from consumption to production, even if on a small scale, in our own gardens. If only 10% of us do this, there is enough for everyone. Hence the futility of revolutionaries who have no gardens, who depend on the very system they attack, and who produce words and bullets, not food and shelter.”

In hindsight, these gardens, a common background feature in most homesteads, served as the main source of the family’s daily nutritional needs. They acted as alternative food sources in the likely event of crop failure due to vagaries of the weather, the sporadic pest and wildlife damage and fluctuating market prices. Additionally, these granny kitchen gardens held something even more precious: a seed bank and a botanical lab where constant experimentation was taking place and heirlooms were preserved. The gardens epitomised food sovereignty in complete revolutionary terms.

My grandparents, who came of age in the nascent days of the British colony, suffered the disruption of an oppressive colonial order. The introduction of a cash economy and wage labour led to new methods of food production, initially as forced labour, and later as a necessity for economic security. While the men farmed to earn money, the women created alternative gardening spaces, delicately negotiating autonomy. A core part of the success of these allotments was seeds.

The loss of heritage seeds

We lost nearly all of the heritage seeds that my grandmother retained in her little garden. The tall pawpaws and red bananas that I thought grew wild as a child are non-existent. The chillies are gone, as are the medicinal herbs and the diverse indigenous vegetables. The traditional yellow-coloured maize known as nyamula of my grandmother’s time are rare sightings. All that I have left is lemongrass that I only went in search of after reading a feature article on its economic viability as a poor man’s cash crop.

In my ancestral village, the keepers of the seed are a generation of grandmothers whose significance is lost in the new agriculture order. The pockets of agribusiness prosperity in the village are exemplified by lush green maize fields propped by agri-tech groups like One Acre Fund that Christine Mungai writes about. Most of the village farms have been reclaimed by bush. Those outside the support network of agricultural companies or who lacked capital to fund farming activity sought alternatives after years of diminishing returns on depleted plots. The culinary habits, a quest for sophistication as an outcome of the colonial project, elaborated by Joe Kobuthi in an article on the hierarchies of food, are now fixated on processed staple substitutes of chapati, bread, mandazi and rice.

In hindsight, these gardens, a common background feature in most homesteads, served as the main source of the family’s daily nutritional needs. They acted as alternative food sources in the likely event of crop failure due to vagaries of the weather, the sporadic pest and wilidlife damage and flactuating market prices.

In a generation, I have witnessed the disappearance and loss of this oral knowledge on indigneous seed in not only food crops, but in trees as well. The predominant attraction to commercially viable eucalyptus, pines and cypress varieties has created tree farms in small holdings following the same ethic of plantation agriculture. Fast growth, high yield and maximum profit.

The indigenous fruits of Kenya are lost to memory and the fruits I now consider traditional, such as mango, guava, and avocado, have roots in Asia and South America. These fruit tree species dismissed for their poor market potential ultimately could not keep up with the evolving culinary habits. The nutritional value of indigenous fruits, such as tamarind, baobab, plums and berries, which grew in the wild, is well documented but restricted to the corridors of botanical research institutes.

Re-imagining food production

The industrialised food systems, with all their detrimental consequences, play havoc not just on our physical selves, characterised by the explosion of diseases of affluence but also on physical land through environmental devastation of water and air pollution and the depletion of biodiversity.

My foray into commercial farming was motivated by profit in an uncertain economy; it was an alternative source of income. I approached it armed with soil tests, fertiliser, certified seed, pesticides and the service of a freelancing agronomist. I decided to try my hand in scaling indigenous vegetables with a boom in demand for local veggies on supermarket shelves. I sourced my seed, the Giant African Black Nightshade (locally known as osuga) from a reputable company. My strategy was monocropping with a rigorous pesticide regimen. Despite my marginal success, it took two pest attacks on a half-acre plot to seriously consider alternative seed. The Catch-22 of hybrid seeds is the heavy reliance on agrochemicals for guaranteed yield. A Route To Food, an alliance against food insecurity in Kenya, conducted research that showed:

At least 32% of pesticide active ingredients that are currently registered and being sold in products in Kenya, have been withdrawn from the European market, due to their serious potential impact on human and environmental health.

This is what set me off in search of my grandmother’s osuga seeds.

Sowing seeds of hope

The seed stock was not available in my village and in the surrounding villages. Whenever I posed the question, I received a cursory response of “koth nyaluo tinde olal”. Indigenous seeds are no longer available these days. My persistence led me to the vibrant Luanda town market in Vihiga County. To my relief, I found a constituency of women selling regional varieties of indigenous vegetable seed, measured by the bottle top from as far as Ukambani. The seed retailed for a fraction of the cost of the certified seed I sourced from the local agrovet. When I asked the women about the stocks, they replied without hesitation, “Mbegu iko”. We have seed. They had formed communities where they collected, selected, exchanged, and preserved seed.

Seed developers have commercialised indigenous leafy vegetables with the emergence of several seed companies selling indigenous vegetable seed. The huge appeal has followed health concerns of meat and processed food-based diets and a return to healthy revitalising traditional plant-based diets.

In a generation, I have witnessed the disappearance and loss of this oral knowledge on indigneous seed in not only food crops, but in trees as well.

I remain aware that these market women in Luanda are an exception rather than the rule. This deliberate stewardship of resilient self-propagating seed is a response to the commercialisation of indigenous vegetable seeds, and in the face of capitalised seed control, they become the face of the resistance movement.

Their actions embody generations of knowledge and a tradition of survival in the midst of a sophisticated assault on the diversity of food crops. The number of peasant farmers on small-scale holdings that once produced the bulk of Africa’s food supply are dwindling. The place of seeds and their preservation is a conversation that happens in the margins amongst groups of community women creating alternative seed economies.

Seed movements

North America has witnessed a revival of native seed exchange banks as indigenous communities re-imagine management systems to store and protect native heirloom seeds that sustained Native American plant-based foods. Seed Keepers Networks are emerging to revitalise native plant species and the inherent rich cultural knowledge that accompanied traditional food pathways. Alongside that are foodie movements returning to tradition of reclaiming and re-imagining pre-colonial African diets that were largely vegan.

Similar initiatives with global visions, such as the International Institute for Environment and Development (IIED)’s Smallholder innovation for resilience (SIFOR) project, examine traditional knowledge-based innovation systems to strengthen food security in the face of climate change. Many of these initiatives abide by a funding model that involves foreign experts jetting in with capital to solve local problems that were exacerbated by neo-liberal economic policies. Where the women are acknowledged, they merely serve as mascots for narratives of rural poverty that appeal to saviour mentality complexes.

It is over two decades since my grandmother’s passing and I have only now come to terms with the significance of her garden and the loss we experienced. It is loss of knowledge, memory, culture and food sovereignty that is replicated among communities in the global South enduring the trauma of colonial dislocation.

The future of seed commons is going to be grassroots-based and sustained by networks of conscious actors organising to dismantle the power of the agroindustrial complex. The confluence of challenges arising from modern food pathways has triggered a case for re-imagination, not only of what we eat, but how we produce what we eat. What we need is culture recovery that revitalises the relationship with land and the foods we produce and consume.

And at the heart of this is replanting our grandmothers’ seeds that we ignorantly forgot to bury in fertile ground.

Written and published with the support of the Route to Food Initiative (RTFI) (www.routetofood.org). Views expressed in the article are not necessarily those of the RTFI.

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Oyunga Pala is a Kenyan journalist, editor and a curator at The Elephant.

Reflections

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Reflections

Sustainability Is Key in the Management of Natural Resources

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Reflections

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

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

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