“Ok, Generation Uhuru!” We are tired of waiting; we are tired of you insisting that you can still do this.
The current economic, pandemic and social mess we are in is an indictment of the Uhuru generation. In many ways, the current holders of the political and economic, and therefore social power have not delivered on their inherent promise as the generation to pursue the independence project to battle disease, poverty and ignorance.
We are in the midst of a pandemic.
To be fair to them, no one could have predicted just how much the world would change in the decades following independence. The very essence of society is shifting faster than the structures within can adapt—as it always has—and there are so many ideas in the public sphere but not one stands out.
Passion, and opportunity, marked a similar growth point in the Uhuru generation’s 20s and 30s. That generation grew up in a radically optimistic world, where the traumas of the Second World War and the liberation struggle that their parents were forced to participate in—either directly or indirectly—had led them to want to build a better world for their children, even as they themselves were trying to figure it out. In that space, the priorities of the preceding generation, acquisition by all means, dimmed as societies moved back into their own internal generational wars.
While our history of the 60s and 70s and 80s might appear grim, because of the assassinations and the many other political and economic blunders, they were, in reality, a time of widespread positive change. To be young then was to experiment with the world, with its TV and global culture, a new world where being black, for example, was a positive thing. Public provision of social goods and services was fairly accessible to all and that service which was not free was dirt cheap. Economic opportunities were in plenty.
But by the 80s, with the Uhuru generation now in their 20s and 30s, and more learned than those that held power at the time, and with the passion of youth, it was time for the start of its claim to determine the course of the country. They watched their counterparts—now closer than ever before—bring down empires. So they demanded more political space, before taking away the throne itself. This generational switch was negotiated between the pre-independence generation of the Mois and Kibakis, and the post-independence generation that started rising through the ranks in the 70s and 80s. Just like the political negotiations of the late ‘50s, men and women in their mid-20s and 30s got high-ranking jobs, the social status that came with them, and the support they needed.
While the post-independence generation was in its infancy, the generation in power was walking the tightrope of trying to keep it together while navigating a new world with a governing structure of sorts. They tried everything, from trying not to choose a side to trying to be on each side’s payroll. While understanding the need to play the global tug of war, they also tried to police the kids who were also experiencing this new world. Google miniskirt and hippie hair bans in 60s and 70s and see how far down a wormhole you will go of the things that they banned. In many African countries, young men with guns got rid of old men, before descending into their own wars, coups and counter-coups.
When they crossed into adulthood and became young parents suddenly aware about how the world works, Generation Uhuru began demanding, and taking over, the tools of power. They took over, for example, religious power by simply speaking directly to the people themselves, without going through the traditional, inherited structures. They did the same with political power, forcing Moi to co-opt them into political power and expand the political space for those who were left out or could not be convinced to join his negotiated reality. To not do so at the time would have been to declare a generational war.
To keep society running, Moi and his age-mates had to give in to the independence generation. They did this while also affirming their belief that the Uhuru generation would mess up; telling them that calling for many political platforms would lead to tribalism and a break-up the country they had built. In the ways in which each generation mythologises its wars with the succeeding ones, it might appear as if all Moi and his cronies did was harass them for being young and radical. But the independence generation liberalised the economy and politics in the ways they thought Kenya should work (and that the new global order demanded), and became rich and powerful while at it. Yes, people died, but in the larger scheme of things, Moi lost the generational war, and it was a good and inevitable thing.
Liberalising the economy and politics helped the independence generation directly, by opening up enough chances for them to get jobs now that they had mounting bills to pay, and to live in a society where they did not need to have gray hair to sit on the boards of government institutions. They had the qualifications because their parents had encouraged them to get the education that they themselves hadn’t received, to thrive in a world where education mattered.
But it was the liberalisation of telecoms—as in the rest of the world—that really did it for Generation Uhuru.
Just as their parents had, the independence generation encouraged its children to go to school so that they could get jobs in this brave new world it had created. Like the generations before, the independence generation forgot that it would need to give up the things it had fought for in order to nurture a generation that would understand what this world now needed. As it aged, its pointed criticisms of everything millennials were doing led it to miss a critical learning curve that would have allowed it to know when it was time to go. It still tried to police everything based on the lessons it had learnt from its predecessor, and to maintain the power structures it had inherited and built upon.
With one foot firmly in one century and the other in a new one, Generation Uhuru failed to recognise its own obsolescence and mortality. Even with their successors —the millennials- popping kids and carving out their own paths and demanding a kinder world, the independence generation joined its global peers in trying to make the millennials feel that what they had done back in the 80s and 90s was enough for the world. That there was enough, for example, for them to continue stealing and holding onto the reins of power. To continue, for example, defining how millennials should determine their own course, or even understand how the world actually works. To insist to them that what was good or bad in 1980 was still good or bad, even when it was evidently stupid.
What the independence generation failed to realise is that while it had arrived at a critical moment where it was still living in the same world as its successors, they were both experiencing two very different existential crises.
In 2010, an aunt of mine called my mother incessantly to tell her I was a devil worshipper because of the memes I shared on Facebook. She lives in the States, which makes the entire thing even more hilarious when I think about it now. But all I had to do then was unfriend her, and she was as good as dead to me. Not emotionally, at least not in the way the independence generation understands the word, but because I could simply go to her profile and unfriend her. It would save me uncomfortable conversations, with me trying to placate my parents’ generation’s sensibilities, even when I didn’t need to. It is for the same reason that I do not talk with them about my atheism, my radical world view, my refusal to vote, my work, my hair, or my life choices . . . all of which appears alien to them. And I don’t need their approval any more. I do not even feel the need, at this point in this story, to assure you that I love them. That goes without saying.
A few months ago, my father asked me to cosign a loan with him. The bank had told him that he was too old to get one, and he needed someone younger, a lot younger (he is in his 70s) to partner with him. He asked this while I was sitting with him together with one of my siblings, and for a second, we both went quiet. I wasn’t sure which question to answer first, because he had actually asked two questions, one of them unspoken. The first was whether I could. I couldn’t. I’ve been listed with a credit reference bureau for years because of my erratic payment of my student loans. I’ve wanted to pay them for years, but the immediacy of doing so has faded over time, because I’ve never used the degree for the obtention of which I had taken the loans; and if the loans were an investment in a better future, then it was an absolute waste of time.
The second question was harder to answer though, because I wanted to navigate his sensibilities about it. It was the question of why a man with a near-perfect credit record stretching back more than five decades could not get a loan by himself. There were many ways to explain this, but I chose the one he would understand best. The refusal of his generation to give up power progressively had mixed things up, as its ideas were coming up against a world that was on a different path. While I only used the example of the 2016 interest rate cap because he would understand it (he is a Kiambu voter; it is the Kiambu MP who sponsored the law), I could have pushed the timeline back by a decade and found a link to that decision, a point in time where his generation, implicitly or complicitly, had built a world where a social safety net like a cap on the interest rate would eventually hurt them. Had he pointed out that it is not his specific generation that is in power today—he was born in the ’40s —my rebuttal would have been simple; it is, because he voted for Uhuru Kenyatta in 2002, and every time since. He consented to what Uhuru Kenyatta’s generation, his younger siblings, would do even before they did it.
2016 would not be the first time our elite class has tried to tame runaway interest on credit to protect their interests. But this time the tables turned on them because, while they had the power to pass the law, they are at the tail end of the working-age population, and it was always going to hurt them first. And then it would become a cycle because the generation that holds power could not pay their employees, who were mostly millennials, and would have to fire them and still try to grow old in a world where their successors were now old enough, qualified enough, and still young and radical enough to do something about it. A similar scenario played out a few years ago when the desire by the Uhuru generation to take care of their parents by giving them money, ruined rural economies in Kenya because old people no longer needed to work and those who were young enough to take on the jobs wanted to do other things.
The refusal of the independence generation to give up the reins of power, or even actually acknowledge that their watch is ended, means that we actually can’t afford, and nor do we have the emotional or physical space to take care of them when they age. And more importantly for them and for us right now, we can’t afford it.
For millennials, the 2010s were a fast-paced journey that will define this next decade in ways we do not yet realise. Now parents to a younger generation looking to us for direction, elder siblings to a Generation Z that is walking out into a broken world, and with an ageing generation of parents that we now realise doesn’t actually know or have the capacity to deal with what we need, there is a glitch in the matrix.
In the last decade and a half, we the millennial generation have built a new world by our sheer numbers and we are constantly aware of what is good or bad for us. While our joining Facebook, for example, was mainly due to the fear of missing out that is probably experienced by every generation, our use of it has made us acutely aware of just how creaky the world the independence generation built actually is. Since they can no longer afford to pay us, because their priorities are not ours, nor their dreams nor language, we are now seeking for direction among ourselves. We are also realising that the words that drove them, such as “development” and “corruption” and even “economy” have a different meaning for us because they are impacting our pockets in real time. And they are words from a different time and context.
One good thing about how nature works is that while it abhors a vacuum, and will fill it to maintain the balance, it does so slowly such that it only makes sense in retrospect. Where we have allowed the independence generation to continue beating the “corruption” drum, for example, our sense of fatigue and individual economic awareness, have blunted the fangs of the war on corruption. It is not our war, because we do not even have the opportunity to join in. Our war is different. And it is one rooted in a context we are slowly understanding; that we are in fact the adults now, and we need to determine which war is ours and go into it without apologies to our parents.
For previous generations identity was still rooted within geographical borders, which could be claimed, fought over, and even cut off from the world. To us, identity is increasingly physically individual, such that we can actually run our entire lives, from the social to the economic, without ever having to breathe the same air with more people than we want to. And for a time, we were made to feel like we were doing this life thing wrong, that we do not read newspapers, that we spend too much time on our phones and laptops (which the independence generation gave us, in many ways) not connecting with actual blood-and-bone humans. But to us, a person in our physical space is no different from someone a world away, and literacy, the ability to read and write, is no longer novel or even attractive. It is part of our language, from love to fights to work to our very existence. We do not need to suffer uncomfortable spaces because we can afford, both economically and socially, to work with each other without actually wanting or needing to meet and shake hands. Even banks, brick-and-mortar businesses that thrived in Kenya under the independence generation, no longer need to actually exist in a physical space. Coronavirus will teach this generation hard lessons that they gleefully ignored.
And geographical borders no longer mean what they once did, because the world they built has made protecting them a dying idea especially with regards to their cultural significance. Not only can you take a virtual tour of practically any place in the world, but you can also learn about where people are thriving without it being a class thing. Anyone can Google whether there is (still) work and racism in the West or the UAE, or we know someone we can trust to do it. You can apply for a passport even while checking whether whatever little money you’ve saved can pay for a flight, all without moving from your bed. These things are no longer novel, they are part of our world, and they are not what is wrong with the world. The independence generation understands, for example, that to switch off the internet in Kenya today is far riskier to their idea of national security than stealing money or jailing and killing people. It would not even be those of us who have been on Twitter for a decade who would form the core of the ensuing revolt, but literally everyone because now everything depends on our ability to be online. The internet might as well be the fifth element at this point.
Many of the decisions the Kenyan elites have made in the last two decades and especially now—BBI included—are simply outdated for the country and trying to steal ideas from their forebears and also learn from the generation they have to hand over power to eventually isn’t working. So they are experimenting, grappling to balance between sticking to their decisions and their waning ability to keep up with young men and women who are on a completely different plane. They are understandably afraid of the fact that millennials are now not only old enough to vote and drink, but they are parents themselves and can actually decide things for themselves with none of the consequences parents threaten their kids with. And millennials are realising that none of what they have been told is true; what they say about tribes is actually about identity, and our generation’s tribes need new names that do not weaponise a history we haven’t lived.
The looming generational change will not be kind, or polite, or even decent. It was once supposed to be a “youth revolt”, a point in time where young Kenyans born after the 80s would rise up and protest. But we are now adults, with bills and kids, so a decision to go out into the streets is existential. Our revolt may not even be physical, because it does not need to happen there for it to matter for the generation. Revolutions are fundamentally about language, and we can speak a language using a single hashtag the same way Generation Uhuru built their revolts around gathering in a common physical space. At the time, the world allowed them not to have to gather in the bushes with guns, as their parents had, because they spoke a language that only they understood. We are at that point in time too, where they have sullied the joys of existing in a common physical space by threatening to kill, maim and jail, and actually doing so. We do not even need to take the risk of working together simply because we exist in the same spaces and speak our own language in so many spaces online, since to know what we are doing online, independently and together, you must be part of the generational in-group.
It is impossible to predict the 2020s, because to imagine what a generation will do when it realises its predecessor/parents are just normal people who don’t know as much as they claim to, is impossible. Will we vote for whoever we decide, and support them with the skills they so generously made sure that we obtained, in such significant ways that the power of money and land the independence generation has been so obsessed with stealing and acquiring will be blunted by the same sheer force of numbers and skills with which we have defined our lives so far. Or will we simply decide to relook at everything we know about business and life, and build our own structures if the independence generation insists on imagining that it has the time to wait and rectify its mistakes.
With millennials, the independence generation needs to know that it is no longer dealing with compliant children or young adults who still need them, or their approval, to exist. It is dealing with fully-fledged adults who are slowly realising they have everything they need to demand their space, and feel a glitch in the matrix so profound that we need to explain what’s happening to each other in a language and on platforms that we understand.
This looming generational change will not even be defined by the rules that Generation Uhuru has demanded the millennials live by because we no longer care much for those rules. We have stopped trying to separate how we live online and how we live offline, because both are part of who we are, and we have grown weary of being shamed for it, and coronavirus has affirmed our point of view. We’ve lived online long enough to see our younger siblings and kids join in, and it is scary to think of any subsequent generation trying to make sense of the world as it is now. This world needs us to claim our space, loudly and unashamedly, and to take it by force if necessary. The independence generation, both the elites and the others, doesn’t know what it’s doing anymore, as it tries to shout across the generational negotiating table in a language only it understands. Millennials are progressively realising that their inheritance is not negotiable, and the independence generation is not ready for what’s coming.
As the current “owners” of nearly all that matters to keep a society together—Generation Uhuru—has a choice, either to give up the reins of power in the same way they themselves demanded and got them, progressively and for each other, or they can watch the world they built burn, as we build city-states by our rules. Negotiating only works if each side gives the other all, or some, of what they want. So far, we have given them time. They have given us stasis and a society that is now dealing with a looming food crisis because of locusts among other things, a global pandemic, a place in time where it is cheaper to die than to be sick, and nothing of value in the future that we are staring at.
Our goal as millennials is to build a kinder world so that our younger siblings and our kids can build a better one. And we have to start from there, looking at everything as it is now, and bringing down anything that is unkind to us and others; because the Uhuru generation forgot the basics of a working society that they learnt from its parents. They wanted to build a new one, only tapping into the old ways when it suited them (such as weaponising ethnicity).
But they inherited the trauma properly, and have since tried to force-feed it—together with the fears such individual and collective traumas carry—to us. And now, as they feel the walls closing in on them, they would rather not ask for help from us but continue shuffling among themselves and those of their parents that are still alive, looking for solutions. What they should be doing is progressively handing over everything they fought for, bought, and stole, to the people who need them now.
We will build them retirement homes they can afford to die in, and for some, better prisons than the ones they inherited and never improved, so that we can focus on the job of bringing this world back to its senses. The alternatives to negotiating this transition are simple, not just in Kenya but the world over. I doubt that the post-World War II generation wants to be known as the generation that inherited a world traumatised by war, racism, pandemic and colonialism, and bequeathed that same inheritance after enjoying one of the most peaceful periods in recorded history.
But what do I know about how the world works? I am a millennial, after all. An eternal child.
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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