I left Nairobi towards the end of March, headed for my home in the Kano Plains located in the lowlands that form part of the floodplains of River Nyando in Kisumu County. It was a few days before the curfew and cessation of movements into and out of Nairobi declared by President Uhuru Kenyatta to contain the spread of COVID-19.
I had grown increasingly anxious, worried by the mood of uncertainty in Nairobi caused by the news cycle about COVID-19. Staying in the village and having a family support system would provide the desired peace of mind. When I arrived in Kano, I found my home area under water due to floods which, according to the locals, were worse than the COVID-19 pandemic despite the scant media attention they were receiving.
On the 8th of April, a video of a blind man submerged in water and pleading with the government to come to his rescue went viral. After reposting it on my social media channels, I decided to locate the mzee’s home in Ombaka, Ahero Ward, Nyando constituency to establish the facts on the ground and find solutions to alleviate his suffering. When I arrived at Ombaka, the murram road to his home was impassable due to flooding. I left the vehicle on dry ground and changed into gumboots to walk the rest of the way to the home.
I was among the many visitors who trooped to his home to deliver items including foodstuffs ever since the video had gone viral. I met a lady who claimed she had been sent by nominated Member of Parliament David Sankok to deliver donations. Also among the well-wishers was a local patron who was using his social media clout to rally his followers to build a house for the mzee.
“Are we going to fundraise and build homes for the entire community?”, a friend asked as we passed through a series of abandoned semi-permanent houses that were falling apart and submerged in water.
After walking on dykes, swampy areas, deep trenches and past abandoned homes, we arrived at the home of 58-year-old Ong’udi Onam. The house was an island surrounded by water, a two-roomed semi-permanent house smelling of damp, the mud walls falling apart and the floor muddy from the flooding waters. We handed over the shopping we had taken to the family and, after prayers, went outside the house to speak with the mzee.
“Why do you still live in such a dangerous place yet all the villagers have moved?”, I asked him. “Can you imagine the challenges a blind man can face in an IDP [Internally Displaced People] Camp during COVID-19 times?”, he countered. “Tell the government that death is death whether by floods or COVID-19. There’s a bigger coronavirus in Nyando in the form of floods and it’s killing our people”, he lamented.
As I left Onam’s home, I was overcome by emotions that soon morphed into resentment and anger. “How cruel can this life be?”, I wondered. A poor, unemployed, visually impaired man lives in a home that floods every year destroying crops, exposing him to waterborne diseases. At night, hippos from the lake threaten his life as they graze in his compound while inside his house, he battles malaria-causing mosquitoes and the anxiety that the house may collapse on him.
Although the video about Onam’s plight pricked the conscience of the nation and Kenyans in the diaspora, it was the symptom of a bigger problem. Even though the Nyando River Basin has always experienced flooding because of its topography and proximity to Lake Victoria, the 2020 floods are said to be the worst in living memory. Since November 2019, the Nyando River Basin has experienced excessive flooding leading to the displacement of thousands to internally displaced persons’ camps.
By the 8th of April, about 1,500 people had been displaced in a region that had experienced consistent heavy rains from November 2019. In Ombaka, I visited a local church hosting displaced women where I met a 78-year-old lady who had been enduring cold nights, insecurity, mosquitoes and a poor diet from food donations since February when she became displaced. The crops she had planted were washed away and her house had slowly succumbed to the floods.
Following the suffering I witnessed in the IDP camps and the destruction caused by the floods on the first day, I went to other parts of Nyando to document the impact of the flooding and raise awareness. In the process, I visited Ogenya in Kadibo, Kadhiambo in Kawino South, Kabonyo Kanyagwal, Ayweyo and Ombaka Kakola sub-locations.
Everywhere I went was untold suffering; lives disrupted, property and crops destroyed, and general hopelessness. Certain parts of Nduru in Kabonyo Kanyagwal could only be accessed by boat – it has been like that since early February. Homes that locals had spent millions to build were submerged in water and deserted.
I was shocked by the level of apathy towards the suffering in Nyando. I was also struck by the loud silence of Kisumu leaders on the matter, apart from a few rival politicians who were capitalising on the floods to score political points. Nobody talked about the far-reaching impact of the floods, including compromised food security, homelessness, disruption of lives, disease outbreaks and increased cycles of lack and deprivation. And nor were there sustained efforts by the local media to highlight the unfolding humanitarian crisis.
In the days that followed, I made noise about the floods. I published a story in one of the local media outlets and ran a twitter campaign to amplify the voices of flood survivors. The campaign didn’t gain traction and the proposals I wrote to donors with the aim of mounting a major media campaign didn’t yield anything. Three weeks later, with my finances running low and my car tires damaged by the poor state of the roads, I was left frustrated and emotionally and physically exhausted. I had escaped from Nairobi to safeguard my mental health but little did I know that the home I had hoped would be a place of refuge would drive me to the brink of a mental health breakdown.
On the 21st of April, a new devastating wave of floods arrived, displacing thousands. I was relieved because it made news and caught the attention of local leaders. As I walked towards Ahero town along the Nairobi–Kisumu highway, I began documenting scenes of havoc in real-time on Facebook Live. The compound of my former high school, Lela Secondary, which had been spared the devastation of previous flood cycles when River Nyando burst its banks, was now completely covered in water, giving it the appearance of a small lake. A few meters away, a group of men toiled, attempting to dredge up sections of clogged River Miriu – one of the tributaries of River Nyando – as they complained about the missing dredgers owned by the County Government of Kisumu.
A police lorry was parked by the roadside. Standing in the back of it, officers urged the displaced residents to board and be taken to the IDP camp set up at Rabuor Primary School. Two County Government of Kisumu lorries – which I was later informed are routinely used for garbage collection in Kisumu County – were also parked by the roadside, repurposed to ferry the displaced to the IDP camps.
Just past the lorry, I met a former schoolmate evacuating his family. Dressed in a branded Kisumu County shirt, the ward administrator pointed to his home submerged in water in the distance and lamented the local leaders’ failure to prioritise the dredging of rivers. Many people were torn between boarding the police lorry to the IDP camps and staying to salvage what was left on their properties.
“If we go, who will secure our things in the house?”, one resident asked. “We are not leaving unless they guarantee security”. “Are the lorries going to carry our cows too?”, asked another as his stunned cows mooed by the roadside. With no coordinated rescue effort, villagers were left to the mercy of generous well-wishers and opportunistic politicians.
The arrival of the Nyando constituency Member of Parliament Jared Okello in a convoy of three four-wheel-drive vehicles interrupted my ruminations. The MP proceeded to distribute bottles of soda and bread to the hundreds of people who had left their homes for higher ground along the highway. A distressed resident observed, “These people think we are on the road because we are hungry?”.
Along the highway, there were elderly people clutching on to the possessions they had salvaged from their flooded homes including live chicken. Mothers held the hands of their children, restraining them from playing in the water or on the roads. Vehicles slowed down as passengers filmed the floods. Men from the affected areas banded together to dredge the clogged drains and the tributaries of River Nyando.
I trudged through the floodwaters in my gumboots, recording the havoc as I made my way to the nearby town of Ahero where I boarded a matatu home. In the vehicle, the sense of helplessness sweeping across the constituency dominated the conversations. My thoughts were interrupted by a phone call from home. The floods weren’t just a news item but a personal tragedy too. Our compound, which I had left dry and which had never experienced flooding in all my father’s years, had not been spared. I arrived home to find our compound submerged knee-high in raging water. The gate was impassable. The crops we had planted two months earlier had been swept away. Ndiri, the embankment that we had recently built around the house, stopped the floodwaters at our doorstep. Inside the house, my family members were moving electronics and disconnecting the power supply.
My father, who is 73 years old, said he had never seen anything of the sort in his lifetime. In the midst of the panic my father remembered the rice he had planted only a few days earlier on his two-acre piece of leased land at the Kopondo A irrigation scheme using a Sacco (Savings and Credit Cooperatives) loan. He desperately wanted to rush to the field but he was dissuaded; my father’s efforts were under water.
In the midst of all this, we received a call from an uncle seeking our help. When we arrived at my uncle’s place a kilometre or so away, we walked through knee–high water in a home that had never experienced flooding. His posho mill was partly submerged in water and the family joined hands to scoop the water from his house using plastic containers, in an attempt to salvage household items that included the stock of a kiosk that he runs from his compound. Floods continued to wreak havoc for my immediate family. One of my uncles lost his house in the process. My grandmothers had to seek refuge in a local church.
That night, the COVID-19 7 p.m. to 5 a.m. curfew was temporarily broken as villagers continued to move to higher ground as late as midnight. With the electricity supply disconnected, residents used flashlights to navigate the darkness, splashing their way through the floodwaters. I remember as a young boy exploring flooded sections at night with a torch and a machete, hunting for mudfish floating on the surface that could be easily dazzled by the light. This time round, there were no fish in the water, only tiny loud frogs.
The next day, when the floodwaters had subsided, a suffocating stench washed over the land; we are yet to understand what was in the water. Most of the vegetation and the food crops that had been affected by the floods began to wither.
The following morning, I decided to hire a motorcycle to visit the various IDP camps to gauge the scale of the devastation. With the floodwaters subsiding, I witnessed the destruction left in their wake. Several semi-permanent houses had been destroyed. People were hanging soaked beddings out to dry on live fences and frantically scooping mud from the insides of their houses.
Kisumu Governor Professor Anyang’ Nyong’o arrived two days later, perhaps in response to the outrage expressed online over the county’s uninspiring emergency response. In a display of pomp, he flagged off the distribution of relief packages comprised of a blanket, porridge flour, green grams and cooking oil that had mostly been donated by well-wishers. The relief food was only distributed to a few IDP camps, mainly in Ombaka and Ogenya, while the majority of flood survivors camping in Rabuor, Ongeche, Nyangande, Kobura, Ayweyo, and Ombeyi among others, were left in the hands of fate.
In what has become our normal, floods in the River Nyando basin follow a recurring pattern. The media corps arrive to capture the human suffering for their headlines. The politicians then trail them with lorryloads of relief food for public relations optics and a few days later, the news cycle moves on, leaving behind the structural issues that have made the Nyando floods a perennial problem.
Solving the problem of flooding in Nyando has featured prominently in the manifesto of every elected leader in the region for the last 50 years. The current MP, Jared Okello, promised to relegate the floods to the history books. The current Senator, Fred Outa, who served Nyando as the only two-term MP (2002–2013), made a similar commitment during his term. His passionate campaign had resonated with many people since he hails from the Kabonyo-Kanyagwal ward, an area adjacent to Lake Victoria where floods wreak havoc annually. The Kisumu Governor, an intellectual with notable credentials, had assured the people living in the Kano Plains that his administration would solve the flooding problem once and for all.
Instead, what we witnessed in April in Ombeyi in Muhoroni sub-county, where hundreds of displaced residents had sought refuge, was a repeat of the political rhetoric, a war of words pitting the Kisumu Governor against his Senator and the Kisumu Woman Representative, Roza Buyu.
As the national government announced the daily tally of new COVID-19 cases, fatalities and recoveries, in Nyando, those displaced by floods slept on hungry stomachs on cold concrete floors in the camps where they had sought refuge. In Rabuor Primary School, I visited one of the classes that housed these people. The windows were broken, there were no mosquito nets and nor did the displaced have proper beddings. They were left in the hands of well-wishers including Kibos Sugar factory, the very one that had been taken to court by residents for polluting their land.
Eight years after devolution, the people of Kano are still being subjected to the humiliation of lining up every year to receive relief food, abandoning their homes and exposing their families to waterborne diseases and the instability caused by preventable floods. It is heartbreaking to see people who lived in their homes and were self-sufficient reduced to destitution.
The flooding in the Kano Plains affects crop fields, housing, and infrastructure and human life. A 2004 strategy for flood management for the Lake Victoria Basin noted that in the Kano Plains, more than 5,000 people are affected annually when River Nyando breaks its banks. The average annual damage runs to the hundreds of millions of Kenya shillings with annual relief and rehabilitation measures costing over KSh64 million (US$600,000).
By the end of April, I was suffering from migraines, nightmares, low energy and irritability, among other symptoms which my doctor said were symptoms of a mental health problem that he needed to examine further in Nairobi. I went to Ahero Police station and obtained a letter authorising me to travel back to Nairobi on medical grounds.
Even though I grew up in the River Nyando Basin (RVB) – a collection of swamps – never had I seen devastation of that magnitude met with that level of lethargy. While driving back to Nairobi, I reflected upon my duty, as a younger son of Kano, to help make my region better for the thousands who – unlike the elites – don’t have the luxury of buying land in Riat, Rabuor, Awasi, Muhoroni and other areas that are not prone to flooding.
My generation must take a stand against this recurring environmental disaster that we experience in Kano. We have to start by organising the members of the community – who have been disempowered by broken promises – to find agency and evolve their own solutions. We must challenge the charity-based response to disaster where scavenging politicians and philanthropists cash in on the misery of the people for optics and public relations purposes and instead establish systems that will respond to disasters effectively.
In 1953, the Netherlands went through its most devastating floods when 1,836 people died as a direct consequence of the flooding and 72,000 people left their homes. Over 43,000 houses and 3,300 farms were damaged, and 200,000 hectares of land were flooded. 200,000 cows, horses, pigs, and other domestic animals drowned even as the once fertile land was rendered unusable after becoming contaminated with the salty sea water.
To decisively respond to current and future threats of flooding and climate change, the Dutch established the Delta Programme which brought together key players including the central government, water authorities, civil society organisations, the business community, provincial and municipal authorities including organisations with specialised water expertise. Because 60 per cent of the country is vulnerable to flooding and more than half the country is at or below sea level, they built an elaborate system of dykes, dams, sluice gates, storm surge barriers and other protective measures.
Just like the Dutch, perhaps the National government and the county government of Kisumu need to adopt a multisectoral approach and create a body, similar to the Delta Programme, that will bring together diverse skill sets to solve the flood menace once and for all.
We also need to champion methods of adapting that have been tried and tested in other flood prone communities like in Southeast Asia where floods caused by heavy monsoon showers, typhoons and storms have been their reality for ages. Thailand’s tropical climate, characterised by a monsoon season running from July to November, causes annual flooding along the floodplain areas. Thai people have adapted the Chao Phraya River Valley floodplain for cultivation of rice which is exported to many countries including Kenya, and using the waterways and rivers for transport.
Even though rice is cultivated in the Nyando River basin, we need to rethink a model which has left our farmers exposed to huge regular losses and exploitative middlemen among other challenges that have compromised the potential of the vast rice irrigation scheme. And while exploiting local knowledge and flood preparedness practices, just like the Thai, the people of Kano also need to consider building houses raised on stilts in order to cope with changing water levels.
We should also work with journalists covering the Kano floods to help them contextualise the phenomenon beyond the click-bait headlines and the images screaming the apocalypse every flooding season. While such headlines and images are effective in communicating the humanitarian crisis and triggering some form of immediate response – which is often barely adequate – they often deliver a one-dimensional, simplistic, and de-politicised understanding of the causes and the impacts of the Kano floods. The legacy media needs to go beyond reportage to highlight the systemic failures that exacerbate floods in Kano. The people of Kano must learn how to turn water into a resource and stop this recurring cycle of disaster.
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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