The death of former president Daniel Toroitich Arap Moi has drawn mixed reactions from various quarters. On social media, there are those who are feting his strengths, from his health and discipline in keeping physically fit, to the Maziwa ya Nyayo school feeding programme, to keeping Kenya “an island of peace”. Then there are those who remember him as the man who ruled Kenya with an iron fist, under whose regime there were several hugely controversial and still unresolved murders, most glaringly that of former foreign affairs minister Robert Ouko. Then there are those others who, in cynical Kenyan fashion, are demanding a public holiday because, well, am not sure why, but that’s just the Kenyan condition, in its fearful and wonderful glory. To say the reaction to Moi’s death is a mixed bag is an understatement. That different people have different ideas of his legacy should not be something to be resisted but something to be accepted and celebrated.
I remember as a child in the early 90s sitting with my late dad, an avid historian—and my sisters, watching Moi on television addressing a huge crowd. One of my sisters wondered why people would choose to come out and cheer such an awful politician with such a terrible political record. (For context, I was born and raised in a region that made no bones about its disdain for Moi. Combine that with a household that approached politics with a critical fascination and that conversation wasn’t out of place.) It is my dad’s response that I so clearly remember: “Regardless of what we know or think about him, look at that turn-out, history will judge him as a popular man”.
In a country with a short memory, a terrible grasp of history and a hugely youthful population where more than two-thirds is under 25 years, it may be difficult to recall a time when the level of expression and openness we are currently experiencing was unheard of. That we can say what we think about the late president should be celebrated as a sign of freedom of expression, one that wasn’t available under his regime. Moi is like that elephant in the old poem that several blind men touched and interpreted to be different things. Just like the elephant was a wall, a fan, a tree, etc., Moi was a dictator, a tribalist, a corrupt individual, a political strategist of Machiavellian genius, the man who ruined a country, the tree planter, the gabion builder and, of course, just Baba. Baba who walked with his ivory rungu (with all its phallic symbolism), the emblem of his power and exclusivity. Moi was all these things to different people.
However one felt about Moi, we can collectively agree that Moi made his presence felt everywhere. It was in the way his activities dominated the news bulletins, in the way graduation ceremonies were at the mercy of his diary because he was chancellor of all public universities. It was in the way we were reminded of his benevolence through the milk that was periodically delivered to primary schools. It was in the way development projects were withheld from areas of the country he perceived as opposed to him. It was in the way schools and other public institutions were named after him. It was in the way he hired and fired senior government officials on a whim and kept them glued to the one o’clock news. How he mastered and liberally weaponised divide-and-rule politics, creating and destroying political careers like the all-powerful sovereign he had fashioned himself to be. It was in the various random acts of kindness he extended to certain citizens, for which the recipients were eternally loyal whilst others viewed them as nothing but exercises in pious performativity. It was in the way he named a public holiday after himself and on the very first Moi Day got the popular Congolese musician Mbilia Bel, then in the prime of her career, to re-write one of her hits and perform the song live, in praise of his regime. And it goes without saying that the song was played all the time on national radio. Many other songs were composed in his praise, ad hoc compositions for the numerous Harambees he attended. Moi also captured the national imagination with his almost invisible private life. The wife we only heard about but never saw, not to mention the rumours of the incident that led to her banishment. Moi captured the state, made the ruling party KANU his domain, and remained a fixture in the visuals and imagination of Kenyan citizens. He was The Sun King of his time, l’état, c’est moi could have been his alternative slogan, it certainly was the zeitgeist of the time for those who remember his rule.
It is Moi’s luck that he ruled at a time when the flow of information could be controlled by the government. With limited independent news and TV stations outside of the compromised state broadcaster, it was difficult to get news narratives outside of what the government wanted reported. Distances, in terms of geography, and lack of freedom of speech meant that we got to hear what the government wanted us to hear and any alternative stories were quickly killed, and if they couldn’t be contained, they would be easily delegitimised. Of course, it really helped that his regime existed in a technologically different time, before the era of citizen journalism. He did not have to deal with the narrowcasting headache of citizens practising everyday resistance by filming, shaming and naming his political misdeeds, socially organising beyond geographical limits and demanding political accountability.
And so there are stories that we will never know unless we actively endeavour to record them as part of our history. We will never know the accounts of the victims of tribal clashes in Kenya, particularly the 1992 clashes. The Parliamentary Select Committee chaired by Kennedy Kiliku compiled a report, popularly known as the Kiliku Report, but it was shot down by Members of Parliament and its findings aren’t available to the public. One of the few things we do know is that six cabinet ministers were adversely mentioned in the report and they wasted no time in pre-emptively lawyering up. This is but one example of the histories that we have failed to record under the Moi regime.
Reminders of Moi’s violence are present with us, physically and metaphorically. They are in the Nyayo House Torture Chambers where unspeakable acts of violence were committed against people whose only crime was to have a contrary imagination of societal happiness. They are in the shame of our complicit national silence, that we refuse to honour these individuals who risked so much to give us the political freedoms we enjoy today. The freedom that allows me to write this article, which at the time of my birth would have been labelled seditious material, eliciting dire consequences. It is in the failure to open the torture chambers to the public as a memorial to our dark history. We are reminded of him by the Nyayo Monument at Uhuru Park which looms over the city like an avenger ready to whip errant citizens back into line.
Perhaps Moi’s greatest political legacy is being felt today as his political acolytes of the early years of his rule now run the country. In a country that is struggling economically and experiencing a social breakdown of order of sorts, many have been quick to draw the symmetry between the current times and the economic dire straits of the Moi regime, especially from the 90s to the early 2000s. The Jubilee government has been kind to Moi, sanitised him some will say, and helped erase his little black book of political misdemeanours, leaving in its place the image of a benign granddaddy/Baba whose leadership Kenyans fondly miss and yearn for. More glaringly for those pursuing the symmetry angle, is the transition politics Kenya is currently undergoing. Deputy President William Ruto is facing hostility and frustration from sections of a government that he is part of, and this has been linked to efforts to prevent him from ascending to power in 2022 when President Uhuru’s term comes to an end. Ruto—who entered into a political pact with Uhuru Kenyatta in 2013 as a way of countering the charges brought against both of them at the International Criminal Court in The Hague—has been likened to Moi, who faced humiliation and opposition from a section of President Jomo Kenyatta’s regime.
As Kenyans get to express their various opinions about their second president, he will also be remembered abroad. For the people of South Sudan, there will be those that will remember the support Moi gave to the Sudan Mediation Process in one of Africa’s longest-running conflicts, a process that, under the stewardship of Rtd General Lazarus Sumbeiywo, led to the Comprehensive Peace Agreement in 2005 and ultimately to the birth of South Sudan as a nation state in 2011. During the Sudan civil war, the Kenya government gave the Sudan People’s Liberation Army (SPLA) leadership tacit support, allowing them and their families to live in Kenya and taking in refugees from South Sudan. Kenya’s role during the cold war cannot go without mention either. As a littoral state, geographically positioned in the horn of Africa, Kenya was of great interest to the Cold War powers. The country allied itself with the western capitalist bloc and proved to be a significant American ally, signing military agreements giving the US naval access at the coast. At a time when most countries in the Horn were deemed to be socialist-leaning, Kenya became a key entry point for the capitalist bloc in the proxy Cold War excursions in the Horn of Africa.
A lot can be written about Moi; these contested narratives about him should be taken as a boon, an opportunity to write the complete and contrary histories of this man who ran a country for 24 years as head of state but whose political career preceded the birth of Kenya as a nation state. This was a man who joined the Legislative Council in 1955, was part of the Lancaster House delegation of Kenyan leaders that negotiated our country’s independence. Moi was in the first opposition government of newly independent Kenya as a member of Kenya African Democratic Union, KADU. He served as a cabinet minister and eventually as vice-president under Jomo Kenyatta. All this took place more than two decades before he ascended to the presidency. All Kenyans, and specifically the critical thinkers of our time, ought to explore the structural consequences of Moi’s regime on the Kenyan condition. While Moi might have been credited with keeping Kenya peaceful during his tenure, as events in 2007/2008 would show, this was but a Potemkin village whose internal contradictions eventually unravelled. The vagaries of Moi’s regime, the physical, economic, political and psychological violence all took a toll on the nation state; something had to give. He perpetuated a political legacy that he had inherited, where the country was at the mercy of powerful political and economic interests keen on extracting and enriching themselves. Beyond the political repression were the economic consequences of his regime: rampant looting and corruption. It is our responsibility to critique these political and economic actions and their effect on the social breakdown of our society.
That we must deconstruct and interrogate Moi’s political career is not just about freedom of expression. It is our civic duty. It is our responsibility to future generations whose only glimpse into who this man was will be in the written and oral histories we will leave behind. We should as a nation engage with this man’s political career especially since he was present during so many critical political moments in Kenya’s history. Part of understanding our history involves understanding pivotal political personalities around this history. So we must critique him, we must hold him accountable for his wrongs, we must allow the stories he suppressed to be told. This is necessary as it is also cathartic. This exercise can be the beginning of an exorcism that this country’s troubled soul so desperately needs. From Moi’s death we can find life, we can choose to reconstruct what our country will look like into the future as we discard the ills his regime and those before him foisted on us. From these contested narratives we can set a new trend where we honour dead public figures by thoroughly examining what their life as public leaders was. This is how we create a culture of transparency and accountability, holding our public leaders accountable in life and even in death, particularly those whom we couldn’t fully hold to account during their lifetime. Ours is a nation with a troubled soul and this could be the beginning of our healing.
Moi’s death will certainly expose Kenyans to an experience similar to what Zimbabweans went through following the death of their founding father, Robert Mugabe, in 2019. There are those that will love him and will let that love come shining through. There are those that will hold him accountable for the grievous political, economic and social injury he inflicted on the country and its citizens. For those whom he wronged, the victims that never received recognition, compensation and/or closure, they will experience a myriad of emotions; from anger at justice miscarried, to sadness. It is a time they are likely to relive their trauma at the hands of the former president. The Kenya government position is clear: instructions for flags to be flown at half-mast, national mourning up until the burial, and a state funeral. A hero’s send-off. Given that the President and Deputy President have a shared history with the late former president, this doesn’t come as a surprise. For the rest of Kenyans, we are passionately split into two constituencies: those that remember him as vile and reprehensible and those that remember him as Baba. Then there is that other constituency that couldn’t care less, the one that just wants a public holiday.
Gold and Gemstone Policy in Kenya: The Devil Is in the Detail
Small-scale artisanal gold and gemstone mining is decades-old but lack of knowledge and expertise, and limited support from the government have hampered the sector’s development.
The evergreen town of Kakamega is a picture of the hustle and bustle typical of any Kenyan town, with many hundreds of folks going about their daily business. But as you leave the town behind, the environment changes, a lush countryside of cultivated fields and densely planted trees giving no hint of the gold mining taking place in the nearby locality of Ikolomani.
Across the country, 432 miles to the southeast of Kakamega is the beautiful transit town of Voi, the largest town in Taita Taveta County which lies at the foothills of the Sagalla massif. But the much smaller town of Mwatate is the county capital, and the source of gemstones that Kenyans from other parts of the country know little about. Mwatate has rubies, red garnet, emeralds, moonstones, tsavorite, okenorite, and many more.
Small-scale artisanal gold and gemstone mining has been going on for decades in both Kakamega and Taita Taveta counties, undertaken mainly by local artisanal miners and by a few non-locals and foreign nationals.
The Mining Act 2016 recognises three levels of mining rights: artisanal mining permits, small-scale mining permits and large-scale mining licences. The small-scale permits and large-scale mining licences are issued at the national level through the Kenya Mineral Rights Board (MRB), while the artisanal mining permits are issued through the county artisanal mining committees. The Mineral Rights Board and the county Artisanal Mining Committees are administratively governed by the State Department of Mining under the Ministry of Petroleum and Mining. The Director of Mines and his representatives in the various counties are in charge of overseeing the implementation of the ministry’s policy frameworks. The Ministry of Petroleum and Mining has key mining regulations in place to govern this process.
But even though the Mineral Rights Board is in place, the process of setting up the county Artisanal Mining Committees (AMCs) has been long drawn out and there seems to be no hurry to implement the mining regulations that were commissioned in 2017. Kakamega County’s AMC was gazetted on 27 March 2020 and the team commissioned on 20 July 2020. However, the AMC has yet to begin its work as the key governmental mechanisms necessary to run the committee are still pending and so no mining permits have been issued to artisanal miners in Kakamega County since the gazettement.
Artisanal miners in Taita Taveta County are in a different situation altogether. The list of members of the county AMC constituted through their appointing authorities has been forwarded to the Ministry of Petroleum and Mining but the AMC has yet to be gazetted. When contacted on this issue, one of the reasons cited by the ministry officials was that factions within the mining fraternity have disputed the list of people proposed to be part of the AMC.
Applications for small-scale mining permits are submitted to the Mineral Rights Board through the Mining Cadastre Portal. The platform is meant to bring these services close to the miners but they complain of the slow response from the Ministry of Mining. They must travel to the ministry to submit the paperwork even after uploading it onto the portal. Access to a stable internet connection is also a challenge in the remote areas of Taita Taveta and Kakamega while some of the small-scale miners lack the capacity to use the online system. Most have to travel to the Ministry’s offices for assistance or else hire someone with the skills to undertake the work for them, rendering the application process both tedious and time-consuming.
The ministry has not undertaken any capacity building and shows a lack of commitment to make the system more efficient and user-friendly. The biggest hindrance, however, is the low budgetary allocation made to the Ministry of Mining, which leaves the staff with limited options in their efforts to serve small-scale miners.
The stated goal of the Mining Cadastre Portal is “to provide an electronic platform for all stakeholders in the mining sector in Kenya to engage directly with the Ministry of Mining.” Existing mineral rights holders (those with mining permits and licenses for mining) or those with pending applications can download, complete and upload the requisite documents. Prospective mineral rights holders can also submit their particulars and other supporting documents through the portal.
The portal is also a one-stop shop for information on mining activities in Kenya. It has a cadastre map of the key areas with mineral resources, as well as details of licence holders, and on-going applications; a click on any part of the map automatically displays the existing information about that specific geographical location.
For artisanal and small-scale miners (ASMs) in Kakamega and Taita Taveta, the portal has had a significant impact on access to public information on mining in Kenya. But the portal also has its limitations. Mining is a highly skilled sector that requires high levels of expert knowledge. Some of the requirements on the portal are beyond the scope of knowledge of most gold and gemstone miners in Kakamega and Taita Taveta. For instance, the portal requires a miner to take the coordinates of the area for which they are applying for a permit. This requires equipment that is typically used by geologists and land surveyors and that is expensive to hire or purchase. A sketch of the area or locality where the miner intends to undertake extraction is another requirement, a very sophisticated process that miners in general cannot undertake on their own.
Lack of knowledge and expertise coupled with lack of access to the internet, or even computers, therefore leaves the small-scale gold and gemstone miners unable to fully exploit the portal.
Aside from these limitations, however, the Kenya Mining Cadastre Portal has been a game changer when it comes to eliminating brokers from the mining sector and it has proven to be a more efficient system than the manual issuing of permits and licences
For instance, unlike the manual system that had no clear guidelines regarding payments, all fees due to the ministry are clearly indicated on the portal and paid directly to the ministry through a cashless system. Moreover, as the portal has centralised all the country’s mining information, cases of loss or manipulation of files or documents have reduced significantly.
The gold and gemstones that are mined in Kakamega and Taita Taveta are exported out of the country with or without any value addition under the provisions of the Mining Act of 2016 which require an export permit from the Cabinet Secretary the application for which is made on the Mining Cadastre Portal.
But while the law on the issuance of mineral export permits is sufficiently detailed, its implementation is the biggest challenge and I have no doubt at all that gold and gemstones are imported into and exported out of Kenya without any form of declaration. There are many routes along the porous Kenyan boarders through which the minerals can slip in or out of the country.
For instance, most of the gold that is mined in Kakamega is taken to Uganda by road undeclared. How can this be remedied, especially for gold and gemstone miners who want to run a clean business? Also, the process of implementing the gold refinery centre in Kakamega and the gemstone value addition centre in Voi remains pending. If the sector is streamlined, then the issue of traceability of gold and gemstones will be resolved and the mineral export licence will be of value to the artisanal and small-scale miners in the sector.
The article is done with support from Diakonia Kenya Country Office under the Madini Yetu Wajibu Wetu (Our Minerals, Our Responsibility) Project. Views expressed in the article are those of the author.
Sustainability Is Key in the Management of Natural Resources
For mineral wealth to have a positive impact there must be transparent policies, reasonable public regulation, commodity flows and sustainable and varied production systems.
Natural resource wealth has massive potential and can hugely impact the economy of a country. The natural resource sector and more particularly the petroleum and mining industry is distinguishable from other sectors of the economy in that ventures in this sector are high-risk and prone to failure if not competently undertaken. Moreover, resources in the sector are typically immovable and must be exploited on the site of their discovery.
Being exhaustible and non–renewable, these resources call for prudent exploitation and management that must also factor in intergenerational equity. And unlike other industries, the exploitation of natural resources is community-based, in the sense that the activity takes place inside communities, providing opportunities for conflict as the business pursuits of an investor threaten the general welfare of the community.
Despite the lucrative nature of the sector, it comes with a number of challenges. Learning from the many countries that have experienced the “resource curse”, it is imperative that from the outset, the following issues are taken into consideration if at all a country wishes to progress and develop through the proceeds of its natural resources.
First, a country endowed with mineral resources should always plan to diversify its economy using the proceeds from its mineral wealth. This is done to avoid the Dutch disease and to ensure that the economy can withstand shocks caused by fluctuating prices. Venezuela and Nigeria are two countries that experienced economic recession due to a fall in the price of oil.
Second, while mineral exploration and production automatically comes with a high pollution risk, there is need take contingency measures to mitigate any such damage. Deliberate steps need to be taken to avoid the Niger Delta situation where land has been so degraded that the cost of cleaning up is estimated at £900 million.
Third, the phrase “resource curse” arises from the many cases where the discovery of minerals has resulted in retrogression instead of progress for the communities within which the commodity has been found. More often than not, these host communities experience conflict when the expected benefits are not realised, sometimes because of unrealistic expectations but more often because of corruption. It is important for investors and communities to engage from the outset, ideally with the government facilitating the process. Increasingly, however, civil society and religious organisations are stepping in to fill the gap left by unresponsive governments.
It is clear that natural resource wealth can provide opportunities for countries to improve the living standards of their people and can positively impact the development of nations. Indeed, it is a commonly held belief that nations richly endowed with natural resources are more advantageously positioned to shape the economic, physical and social aspects of their development than those less endowed.
However, the paradox of plenty has been the subject of extensive research by scholars and practitioners precisely because many resource-rich countries are associated with increased poverty levels, civil war, reduced economic growth, greater inequality and social injustice. This is because of a lack of goodwill to develop other sectors of the economy that are not necessarily dependent on natural resources, among other factors.
There are however, countries that can be cited for having taken off successfully. Norway, one of the world’s richest economies, and Botswana, one of the largest producers of gemstones, have both clearly demonstrated how natural resources can be harnessed to foster development, build the economy and generally improve people’s livelihoods.
Conversely, countries like the Democratic Republic of Congo, with its has huge deposits of natural resources including cobalt which is highly sought after and is of great economic value, and Angola, with its vast reserves of natural gas, are examples of how resources can come to be regarded as a curse due to the civil wars, conflicts, under-development, low GDP, and the many other problems associated with these nations despite being resource-rich.
A number of academic studies also suggest that natural resource wealth slows down the economic growth of a country. This narrative is however challenged by countries like Singapore, the United Arab Emirates and Taiwan which, despite being modestly endowed, have invested the revenue from their limited natural resources in the areas of education and research, have strengthened their policy and legal frameworks and institutions, and established parameters for advancing wealth creation and multiplication, as well as savings for the future generations.
Many theories have been advanced in an attempt to explain the resource trap in mineral rich countries. However, none of the hypotheses advanced has identified the root cause of the paradox of resource abundance. This is because, by themselves, natural resources cannot be classified as either a curse or a blessing; they are opportunities that prudently exploited can jumpstart an economy and bring long-term fiscal benefits to a country.
Unfortunately, a majority of resource-rich countries are anti-democratic and have opaque policies and institutions. Predatory governance, greed and corruption often lead to the signing of secretive and exploitative production contracts that only benefit the investing multinationals and their countries of origin.
However, there are many tried and tested strategies and approaches that have resulted in strong economies with stable and functioning governments. For mineral wealth to have a positive impact and be a blessing there must be transparent policies, reasonable public regulation, commodity flows and sustainable and varied production systems.
A good example is the resource-rich state of Alaska in the United States where 9.6 billion barrels of oil were discovered in 1969. That year Alaska collected US$900 million from the oil lease sales but all the money was soon squandered. Worried that money from the oil resources would go to waste and benefit just a few, Alaskans voted to have the proceeds spent on state development.
Seven years later, and with infrastructure development largely achieved, a public vote established the Alaska Permanent Fund through a constitutional amendment. The fund was designed to receive at least 25 per cent of the oil revenue and in 1982 a dividend programme was added to the fund. The sovereign wealth component promotes and ensures intergenerational savings while the dividend fund ensures that all residents of Alaska enjoy the fruits of their natural resources by receiving annual dividends in the form of cash transfers. Since the first deposit of US$734,000 was made in 1977, the fund had over US$64 billion dollars in 2019 with each resident of Alaska receiving US$1,606 in dividends that year.
From the example above, it is very clear that a country can truly develop using its natural resource wealth. One of the ways in which it can do this is by securing tenure rights to natural resources through regulations that determine who can use the natural resources, for how long and under what conditions. Tenure rights clearly specify the expectations of each stakeholder with regards to their roles and, importantly, the role that the hosting communities are going to play during the entire period of the extraction of the resource.
Contract transparency is another way in which good governance can prevail in the extractive industry. Resource extraction contracts signed between the host governments and the multinational companies should be made public to provide general information to the public and ensure transparency, scrutiny and accountability.
There are countries, like Ghana, that support the idea of contract transparency as a fundamental principle in managing their extractive industry, but many nations have not fully embraced the idea of contract transparency for fear of sparking public outrage and also to conceal the information for personal gain. Through contract transparency, everything that is in the contract is laid bare and the specific expectation from every stakeholder is made public. This promotes good governance and transparency and also ensures that the benefits trickle down to the community level, promoting sustainable development.
Creation of a strong regulatory and institutional framework is also another way of ensuring good governance in the management of natural resources. The legal or regulatory framework can either enhance or inhibit development in the extractive industry and there is no template for what needs to be done in order to ensure a strong legal and regulatory framework. Each country has a unique opportunity to come up with its own tailor-made legal and regulatory framework that works for it and this involves developing laws and regulations that address specific issues in the industry while at the same time safeguarding the interests of the communities and incorporating international best practices.
Having competent and functional institutions to implement the laws and regulations is another important step towards ensuring good governance in the management of the extractive industry. For the enacted laws to be effective, they must be implemented by institutions that are proactive and competent. Narrowing the implementation gap by ensuring that what is happening on the ground is in tandem with the provisions of the law is one of the critical roles of functional institutions.
A strong civil society can help in ensuring good governance in the management of natural resources. Civil society organisations provide information and have the moral legitimacy to set the resource governance agenda. They can help to democratise power in resource management, and can work to keep other resource governance actors like governments and companies accountable. The civil society plays many roles, among which is the monitoring role, where it ensures that all the state and non-state actors play their role effectively in the management of resources and, more importantly in monitoring and ensuring that benefits are realised at the community level. They also help in highlighting corrupt practices in the industry and non-adherence to the internationally recognised practices guiding the extractive sector. Civil society organisations also have a role in representing the views of ordinary citizens on issues of national importance, in this case the extractive industry.
Lastly, civil society also plays a role in setting the agenda to ensure that the interests of the public in general, and development, are given priority. According to the Institute of Global Environmental Strategies Report of 2007, governments are increasingly involving local communities and non-governmental organisations in the management of natural resources. The ways in which the different stakeholders are involved varies. In involving different stakeholders, the governments broaden the scope of engagement and possibly minimise the chances of achieving a negative impact, reduce conflict and increase efficiency in resource management.
And finally, natural resources cannot be discussed without mentioning the environment. In an effort to benefit from the natural resource wealth while dealing with environmental issues, the following principles should be considered: All decisions made must be anchored in best governmental practice in order to ensure best practice in perpetuity. Resources must also benefit communities away from the resource as the impact of pollution may be felt away from the immediate location of the activity. Where there is no scientific evidence of possible impact, an investor should provide contingency measures and where such evidence of possible impact on the environment exists—usually through an Environmental Impact Assessment—an investor must formulate measures to avoid harming the environment and a polluter must sufficiently compensate for harm caused. We must give future generations the same opportunity to have access to a healthy environment that we as a generation have been given.
The article is done with support from Diakonia Kenya Country Office under the Madini Yetu Wajibu Wetu (Our Minerals, Our Responsibility) Project. Views expressed in the article are those of the author.
Time To Address Compensation and Resettlement Issues in Kenya’s Mining Sector
The Land Act, the Mining Act and the Land Value Act are inherently contradictory and the country lacks a national policy on issues arising from involuntary displacement.
Vision 2030 promises to transform Kenya into an industrialised middle-income country and, to that end, proposes ambitious projects which include the Standard Gauge Railway (SGR), the Lamu Port-South Sudan-Ethiopia Transport Corridor (LAPSSET), multipurpose dams and the development of oil and other mineral resources among others.
Large-scale projects, including mining projects, catalyse socio-economic development, which is what many people expect and can easily see. On the other hand, they undermine human rights, cause livelihood disruptions and break up the social fabric of the affected communities. This article focuses on this second aspect and examines compensation and resettlement policy gaps and challenges with respect to the mining sector in Kenya.
Large-scale mining projects lead to involuntary displacement, deprive those affected of the use or access to their resources, disrupt sources of livelihood and interfere with the cultural fabric of the affected communities. International safeguards developed by the World Bank and the Africa Development Bank on involuntary displacement recommend that all community concerns must be taken seriously in the planning and implementation of all investment projects.
World Bank guidelines provide that involuntary resettlement should be avoided and where it is unavoidable, all the people affected must be fully and fairly compensated. Moreover, compensation and resettlement should be seen as an opportunity to improve the livelihoods of those affected. However, the legislation currently guiding compensation and resettlement in Kenya does not regulate these processes in a clear and specific manner.
Take for instance the story of Phase 2A of the Standard Gauge Railway (SGR) that runs from Nairobi to Naivasha traversing Nairobi, Kajiado, Kiambu, Nakuru and Narok Counties, a project which was delayed for three years due to land acquisition and compensation issues.
In the June 22 2019 edition, The East African published stories of human suffering caused by the project. A mother of three, Ms Kusero was promised Sh2 million for her quarter-acre property but a house made of recycled oil drums is all she received as compensation for allowing the SGR to run through her land. Hers was one of many such stories of families whose land was compulsorily acquired for the project. On paper, they were paid billions in compensation but in reality, only a few actually received compensation.
Ms Kusero says that for people like her there were no negotiations and raising grievances regarding compensation was extremely frustrating. “You go to the National Land Commission and you are asked to go to the Ethics and Anti-Corruption Commission. Then you are sent to the Directorate of Criminal Investigation and Director of Public Prosecutions before being bounced back to the National Land Commission. In the end you get frustrated without redress.”
The second story is about the extractives sector and concerns compensation owed by the Kenya Fluorspar Company to the Kimwarer Community in Kerio Valley. After exploration and confirmation of the existence of viable fluorspar, the company excised land and started its mining operations before it had compensated and resettled those it had displaced. There were no consultations whatsoever regarding compensation.
A task force report on the Review of Fluorspar Mining in Kerio Valley established that some attempts at compensation were made. In 1982, two cheques of Sh3,606,000 and Sh500,000 were released by the National Treasury to the District Commissioner to compensate the affected residents. The land compensation value was determined at Sh450 per acre of which Sh50 was deducted directly by the District Commissioner as contribution to a local school fundraiser in the Kimwarer area.
The affected residents who wanted alternative land in compensation were promised they would be resettled on Kilima I and II and Grosell farms in Uasin Gishu. They were also promised that they would receive shares in the Flourspar Company and in the Wagon Hotel in Eldoret town. Those among them who attempted to settle in the promised land were later evicted and accused of invading private property. To date, the victims of these atrocities have not received justice.
Gaps and challenges in the policy and legislative frameworks
Large-scale mining operations require massive tracts of land and often lead to significant human rights violations. Communities whose livelihoods depend on land find themselves in a struggle to defend their rights against the mineral rights granted to investors who are usually large-scale multinationals acting with the full support of host governments.
Kenya’s constitution sets out the general principles of equitable, sustainable and efficient use of land and establishes forms of land ownership. It vests ownership of mineral resources in the government, which means that any land with mineral resources can be compulsorily acquired in the public interest. It further protects the right to property from unlawful deprivation of ownership or limitation of enjoyment unless for public purposes or in the public interest in which case prompt, just and full compensation is required. It is from these provisions that mineral resource projects draw justification to cause involuntary displacement.
Kenya passed a new Mining Act in May 2016 to bolster the legal regime and reinvigorate the mining sector. The Act provides that where a mineral right disturbs or deprives access to the landowner, causes damage to property or occasions loss of earnings, the landowner may claim compensation whose payment must be prompt, adequate and fair. It doesn’t define what “prompt”, “full” and “just compensation” mean. The mineral rights holder is responsible for all the compensation and resettlement costs.
Moreover, the Mining Act appears to overlook the sensitivity of cultural resources. It does not protect or seek to identify cultural assets. Instead, it provides that no demand or claim for compensation shall be made for any loss or damage for which compensation cannot be assessed according to legal principles. Cultural resources are sensitive owing to the level of emotional reaction they spark when interfered with. They include spiritual sites, shrines, medicinal plants and graves whose value cannot be determined using formal processes but only through consultations and negotiations in good faith. The World Bank’s cultural safeguards on involuntary displacement provide that cultural property should be identified, protected and appropriate actions taken to avoid or mitigate adverse impacts, and that interference with cultural assets may only be justified when the loss or damage is agreed to be unavoidable.
The Land Act empowers the National Land Commission on all matters related to compensation. The Commission has the responsibility to make inquiries and determine interests in the land, receive claims of compensation and facilitate just compensation. It does this on request from agencies seeking to compulsorily acquire land. From 2013 to 2019, the Commission paid-out Sh38.273 billion in compensation of which 75.2 per cent went to the SGR and road projects. Within the same period, neither land acquisition nor compensation was undertaken by the Commission for mining-related projects, which raises the question as to how land acquisitions and compensation for extractives are carried out.
Parliament passed the Land Value (Amendment) Act In 2019 to address concerns relating to compulsory land acquisition, compensation and resettlement. One of the gains in this law is that it defines “just compensation”, “prompt” and “full”, terms that are used in the Mining Act, the Land Act and in other laws without clarity. Accordingly, “Just compensation” means a form of fair compensation that is assessed and determined on the basis of the criteria set out under the act. “Prompt” means within a reasonable period of time but not more than one year after the Commission has taken possession of the land. “Full” means the restoration of the value of the land, including improvements made on the land at the date of notice of acquisition.
It is to be noted that unlike in the past where the NLC was required to compensate the landowner before taking possession, the Land Value law now allows possession of the land before compensation is paid. This is contrary to the Mining Act which provides for prior payment of compensation. Taking possession before compensation would disadvantage the affected persons and the one-year period set for paying compensation is too long especially for large-scale mining projects that normally deprive the owner of use of property such as farmland, homestead and grazing areas. The World Bank standards require that compensation is paid in full before displacement or restriction of access.
The Land Value law also provides criteria for assessing the value of compulsorily acquired land based on a land value index to be developed by the Land Cabinet Secretary in consultation with county governments and approved by the National Assembly and the Senate. Assessing land value for compensation purposes requires wide consultations with the affected persons and the relevant agencies, which this Act does not seem to embrace. As provided for, the development of a land value index excludes the participation of the National Land Commission, land valuation agencies such as Surveyors of Kenya, government ministries such as the Ministry of Petroleum and Mining whose main work causes involuntary displacement.
Key issues and action required
The first issue is the fragmentation of the legal frameworks that guide compensation and resettlement in Kenya. The country lacks a national compensation and resettlement policy that standardises compensation and resettlement and ensures that all socio-economic and cultural issues arising from involuntary displacement are properly addressed. The national policy framework on compensation and resettlement should be developed taking into consideration international best practices and safeguards to provide a harmonised policy direction that considers all the complexities that come with involuntary displacement. The policy framework should broadly articulate compensation and resettlement in such a way that it is understood to be an opportunity for improving the livelihoods of the affected people rather than as a process to subjugate them and worsen their livelihoods. At the very least, regulations on compensations and resettlement should be developed for the Mining Act.
The second issue is the uncoordinated institutional approach for compensation matters. The National Land Commission takes charge of both land acquisition and compensation based on requests and funds from the acquiring agencies whose roles are often unclear. The suggested national policy should provide a clear framework for institutional coordination and harmonise the efforts of all relevant agencies; compensation and resettlement must be a multi-agency function. In this way, overlooking community concerns will be minimised and, more importantly, the processes will be more transparent and less fraudulent. Effective institutional coordination will also enable an integrated grievance redress mechanism.
The third issue concerns the land survey regime; it is mired in corruption, inherently opaque and exploitative. Compulsory land acquisition heightens emotions and ignites serious land speculation perpetrated by public officers with privileged information who collude with greedy elites to defraud the state through inflated land prices.
Reforms to introduce transparent land surveying and valuation are required. This means strengthening the policy frameworks and the institutions involved and also requires a robust mechanism for monitoring compulsory acquisition, compensation and resettlement. It should become policy that a compulsory land survey is undertaken prior to the compulsory acquisition of any unregistered land.
The fourth issue is the absence of cultural resources as a factor of compensation and resettlement in the available legislations. Disruption caused by extractive projects on the social, economic and cultural ecosystems of the affected people can never be truly compensated or restored. Compensation merely helps the affected persons to continue with their livelihoods but does not and cannot restore their exact loss.
Legislations guiding compensation should clearly recognise cultural resources and all assets with cultural meaning and value for the affected people as an aspect of the process of negotiating compensation. Effective community participation must be allowed in identifying and deciding the compensation for cultural resources that may be affected by mining projects.
The final issue has to do with the procedures for paying compensation. Where the project affects the whole family, it is unclear whether compensation is awarded to an individual or to a household. Capacity building for the beneficiaries on the use of finances is also a concern and because it is rarely undertaken, waste of compensation funds, family disintegration, homelessness and other socio-economic concerns ensue. Support mechanisms to ensure effective financial planning are therefore important.
The lack of a mechanism to monitor the payment of compensation is another concern, leading to serious irregularities, corruption and human rights violations. Furthermore, the approach to dispute resolution needs to be harmonised to recognise structures at the county level. As they currently stand, the Land Act, the Mining Act and the Land Value Act are inherently contradictory.
The article is done with support from Diakonia Kenya Country Office under the Madini Yetu Wajibu Wetu (Our Minerals, Our Responsibility) Project. Views expressed in the article are those of the author.
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