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The Construction of Race: Being African American and Teaching the History of George Floyd in Kenya

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Students in Kenya have not been taught about how the social construction of race has affected them. They do not seem to connect the social construction of race to imperialism, colonialism, labour reserves, the colour bar, and passes in settler colonies in Kenya and throughout Africa.

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The Construction of Race: Being African American and Teaching the History of George Floyd in Kenya
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Like everyone else around the globe, I have been watching and reading about the events that unfolded after the murder of George Floyd in Minneapolis, Minnesota on 25 May 2020. At this point, I thought that everyone from entertainers to athletes, politicians, journalists, and ordinary citizens from all walks of life from London to Lagos, from Paris to Pretoria, had provided their explanation and analyses of the blatant disregard for human life displayed by the former police officer, Dereck Chauvin and his inexperienced and inept colleagues. I asked myself what, if anything, I could add to the discourse. And then it occurred to me that perhaps I had something to add through my national, transnational, Pan-Africanist, political, academic, and social lenses.

There are several things and observations that have prompted me to write this essay. First, I received a very heartfelt and very profound email from a student I taught a couple of semesters ago at the United States International University-Africa. The course was titled Comparative Political Systems and one theme in the course is liberal democracies that are covered in the text in the usual male and Eurocentric manner where the United States is explained within the context of liberal democracy.

The way I teach it is not in line with this inaccurate portrayal of American exceptionalism. I teach it by providing the historical, social, economic, and political struggles that all racial minorities experienced in their efforts to achieve citizenship rights. I start with African Americans. I provide their experiences from 1619-1965. I then cover Native Americans, Chinese Americans, Japanese Americans and Mexican Americans.

Why do I cover only these groups? It is because by the time large numbers of other groups such as the Vietnamese, Indians, Nigerians, Ethiopians, Ghanaians, Cubans, and Hmong (one of the police officers that was with Derek Chauvin during the murder of George Floyd is a member of this community) began to arrive in the country, their civil rights were already recognised in law. On paper at least, they did not have to depend on the kindness of their adversaries to protect their civil rights.

The course covers public policies and not opinions regarding the social construction of race and how it was codified into law. The effects of these policies are still manifested today. A few examples should suffice: the codification of slavery into law beginning in my home state of Virginia in the 1660s, Slave Codes, the Three-Fifths Compromise, the Fugitive Slave Act, the Civil War, the failure of Reconstruction, Black Codes, the founding of the Ku Klux Klan in 1866 and other white domestic terrorist groups, the decision by the highest court in the land in the Plessy vs. Ferguson case (1896), the Red Summer of 1919, the destruction of the Greenwood District that was dubbed the Black Wall Street in Tulsa, Oklahoma (1921), redlining, restrictive covenants, and the murders of so many including Emmet Till, Medgar Evers, James Chaney, and members of the Black Panther Party such as Mark Clark and Fred Hampton.

My former student said that he was witnessing the social construction of race carried out live in technicolour in his home. He had finally understood what I had taught him in class and the importance of learning the racial politics of the mighty United States of America.

Second, I am currently teaching Introduction to Political Science and the questions and, on the one hand, the issues raised by my students are not surprising. On the other hand, it is incredulous that some of them are not able to connect George Floyd to the murders of Kenyan youth in particular at the hands of security forces and the police in Kenya. Race is not the issue here, but place of residence, ethnicity, and class certainly are, and citizens are profiled and surveilled accordingly.

One student asked why it was that African Americans had not protested earlier. This question was raised despite the fact that I had made available to the class readings, documentaries, and podcasts that explained the Civil Rights Movement, Black Nationalist struggles and groups such as the Student Non-Violent Coordinating Committee (SNCC) and the Mississippi Freedom Democratic Party (MFDP) who protested and demonstrated long before the establishment of Black Lives Matter (BLM). Finally, their inability to connect the history, struggles, oppression, and exploitation of Kenyans, Africans, and people of African descent is frustrating and downright sad. Some of it is not their fault.

The teaching and learning of one’s history and culture should start in the home and continue in schools. No African or African-descended person should ever expect that schools and curricula that were not developed for us and by us will truly educate their children. It is not in the interest of the private schools here in Kenya that pride themselves on offering a British or American curriculum. More sad is the fact that Kenyan public schools do not seem to be interested in teaching their students African and Kenyan history either. If this education is not provided by the home/parents, elementary and high schools, what about the few who are enrolled in tertiary schools? One might think that by this time it is too late. It is never too late, but the fact of the matter is, it is not provided at that level either.

I dare say not a whole lot has changed when it comes to browbeating students into believing that everything that is worth having, including education, cannot and must not be African. There is a passage in Toni Morrison’s novel Paradise that refers to Native American girls in a Catholic boarding school in Oklahoma, but she could have very well been writing about Kenya. She provides the reasoning and the importance of the school from the viewpoint of the Catholic nuns who are desperately trying to keep the school open as most of the boarding schools were Protestant. It is worth quoting:

It was an opportunity to intervene at the heart of the problem: to bring God and language to natives who were assumed to have neither; to alter their diets, their clothes, their minds; to help them despise everything that had once made their lives worthwhile and to offer them instead the privilege of knowing the one and only God and a chance, thereby, for redemption.

By teaching the social construction of race, my intention is not to brainwash them into thinking as I think; that would not be a positive outcome. My goal is to alter their minds. That is what happened to the student I mentioned earlier: an alteration of the mind occurred because the mind was opened to receive new facts, analyses, and worldview. He was made to think and question what he thought he knew. That is the role of education and that is our role as professors; to make our students think. I teach the social construction of race in all of my classes from Refugee Studies to Development Issues in Africa, to African International Relations because it is necessary. None of the topics/themes in these classes would make any sense without it.

The University is closed due to COVID-19 but there are various platforms where faculty can post comments, video clips, and so forth. So I was actually surprised by the lack of discussion following the murder of George Floyd although, I will admit, I myself did not comment initially. I am the only member of the historic African Diaspora on the faculty and I did not want to bear the responsibility of speaking and representing more than forty million people in the United States.

However, a recent posting prompted me to weigh in because it shed light on why students asked the questions that they did. Students have not been taught about how the social construction of race has affected them in Kenya. It is as if those things such as the murder of George Floyd and others are an American problem. They do not seem to connect the social construction of race to imperialism, colonialism, labour reserves, the colour bar, and passes in settler colonies in Kenya and throughout Africa. They do not connect the phenomenon of skin bleaching and the blond-dyed hair to the social construction of race. It is our responsibility as professors to deconstruct the social construction of race in our classrooms, in the readings that we assign, in the discussions that we lead and facilitate, and in our teaching.

However, I learned a long time ago that teaching is not value-free. We enter the Academy and the classroom with our worldviews that have been molded by race, class, gender, religion, location, and family background. In addition, professors cannot and will not teach what they do not know. Moreover, they will not teach what they do not value. If we do not know or value our history and struggles, how can we then teach our students about them? Therefore, when a colleague attempted to dismiss the definition of “Negro” as something that is petty and innocuous, it served as a trigger for this essay.

Words and definitions have meanings and when they are superimposed upon any group, we as academics need to deconstruct them and give explanations to our students that provide an intellectual examination of the social construction of race. It is one thing not to know; one can always educate oneself, but it is another thing altogether when one does not see the value in knowing. When this occurs, it is no wonder that we get the questions and observations that we do from our students concerning racial politics in the United States. Students are here to learn; professors should be here to teach them. We must teach our students here in Kenya why this white police officer thought nothing of putting and then holding his knee on the neck of George Floyd for eight minutes and forty-six seconds.

For anyone who watched the infamous video, it is obvious that the officer did it in a gleeful manner; he was posing for the cameras. It was as if he was saying look at me; I have the power to squeeze out this man’s life in broad daylight while being filmed and no one can stop me and I will get away with it with impunity. How do you teach that without deconstructing the social construction of race? This is easy to do when you know the history behind it and, moreover, you value that history. When a student asked if I thought the looting was justified, I could easily answer it because African Americans are sick and tired of being sick and tired. If COVID-19 has not made this crystal clear, I do not know what will.

Finally, I asked my students if they have relatives and friends who have immigrated to the United States and what sectors employed them. Several answered that they have relatives and friends who are in states that have high levels of infections and deaths caused by the virus. I then asked them what sectors employ their friends and relatives. I did not want to assume that I knew the answers but as it turned out, they were the same sectors that employ large numbers of the historic Diaspora: home care, health care, public sector, and retail.

Simply put, the COVID-19 pandemic and the murder of George Floyd have made it even more important to teach the ramifications of the social construction of race in the United States. Students can understand and examine the similar conditions of African-descended people in the United Kingdom, France, Brazil, Germany, Spain, and other countries that are directly connected to the social construction of race.

Third, the memorial service for George Floyd in Minneapolis and his Homegoing service in Houston also prompted me to write this essay. It was the words of the diehard champion of civil rights, Rev. Al Sharpton, at both events that made me think and reflect on deconstructing the social construction of race and teaching it while Black in Kenya. In particular, it was that part of the Homegoing celebration where he spoke about the knee of white America being on African Americans’ necks for centuries.

That knee was there almost from the beginning through the manifestation of the public policies mentioned above: Slave Codes, Black Codes, and Sundown Towns. Because African Americans were socially constructed as the “other” and the “Negro” was defined as basically sub-human, it was believed in all circles of white America that the white knee had to be placed on the necks of Black Americans or else they would return to their original state of barbarism. How else would you explain the hell-bent efforts by whites in the American south in particular, to “keep the Nigger down” following Reconstruction?

Ida Bell Wells wrote about this in her journal following the lynching of her three friends, Thomas Moss, Calvin McDowell, and Henry Stewart, in Memphis. These three men were upstanding members of the city; they practiced the Protestant Work Ethic; they did as Booker T. Washington implored African Americans to do at this time. They cast down their buckets where they were in the south. They embraced the ownership of private property. Then why were they lynched? They did not whistle at a white woman as Emmet Till was accused of doing. They did not rape a white woman or have consensual sex with one. What crime did they commit that resulted in their extrajudicial killing? They opened the People’s Grocery across the street from a white owned grocery store! African Americans began to patronise the People’s Grocery instead of the white-owned one.

The white owner and others treated this as a major affront and insult. Instead of embracing capitalism, competition, and individual merit, they took it upon themselves to go into the store and intimidate the owners and their customers who were mainly Black men who were armed. When the Black men defended themselves by using their weapons, the white man’s knee had to be firmly placed on their necks. They had to be put back in their place or else the social, political, and economic order would crumble. In sum, all three men were lynched. Whether it is the knee, noose, gun, fists, or whatever, Black men (largely) and Black women, have been murdered, lynched, maimed, and brutalised just because of the colour of their skin.

Rev. Al Sharpton delivered another thought-provoking message during his eulogy of George Floyd; that part of the eulogy where he spoke about his last name being the name of the white master who owned his family in South Carolina. The fact that every time he signs that name he is writing not his name but the name of the white master. With as much education as I have, and as much as I thought I was attuned to my oppression and the oppression of Black people in the US, I had never articulated it in that manner.

I take great pride in the names of my ancestors: Johnson, Streets, Jenkins, and Veney. I love to walk around my neighborhood in Nairobi in my Johnson and Veney family reunion t-shirts proudly displaying my history and my ancestors. I am proud of them for it is upon their shoulders that I stand. It is their great sacrifice, hard work, faith, determination, and perseverance that allowed me to obtain a PhD, teach in the Midwest, the East and West Coast of the United States, and now in Nairobi.

I also proudly wear my two t-shirts to display the name of my MA alma mater —Howard University. The University was named after a white Union officer during the Civil War—Oliver Otis Howard. How many others such as Lincoln University (both in Pennsylvania and Missouri), and Spelman College are named after white people? Wilberforce University, the first private HBCU (Historically Black Colleges and Universities) was named after William Wilberforce, a staunch abolitionist. Regardless of whether they are family names or university names, they are the names of white people. I am going to have to figure out how to reconcile the two.

I grew up in the belly of colonial America—Westmoreland County, Virginia. Growing up on George Washington’s Birthplace Road, I was literally surrounded by all the symbols of colonial and revolutionary America. Not too far from where I grew up was the birthplace of the confederate general, Robert E. Lee. All of my known ancestors on all sides were born and raised in this county. An open house would be held on George Washington’s birthday and I remember looking forward to and enjoying the apple cider and ginger bread that were given to all of the visitors. I remember field trips to Stratford Hall, the family home of the confederate general.

The social construction of race ran so deeply in my county that African Americans did not get a high school until 1937! They had been in that county from the 1600s; they had made many families which still reside in the county rich with their labour that produced tobacco, corn, wheat, and from the rivers that were bountiful with fish, crabs, and oysters. Yet, they were not deemed worthy to attend school beyond the elementary level. A.T. Johnson High School was opened in 1937 until 1970 when all public schools in the county were integrated. It is important to note that in the Brown vs. the Board of Education of Topeka, the Kansas Supreme Court decision of 1954 ruled segregated schools to be unconstitutional. Yet, it took Westmoreland almost twenty years to act with all deliberate speed in integrating its schools.

The eulogy by Rev. Al Sharpton during the Floyd Homegoing service made me reflect on not just my name, but the name of the first high school for Blacks in Westmoreland County and the name of the school we could now attend. A.T. Johnson High School was named after an African American. That school was turned into a middle school and African American students who lived in that part of the county were then integrated into Washington and Lee High School.

Rev. Sharpton’s eulogy made me articulate this: our beloved A.T. Johnson High School that my ancestors had worked so hard to establish was now demoted to a middle school. And the pride that was once felt by all who went through its doors was now replaced with a school named for two slave owners, one of whom was a traitor who went to war against the country to maintain slavery! What a price to pay for integration. Even worse, A.T. Johnson High School is no longer open as a school.

The Historyland Highway runs through the county, yet there was rarely any mention of our history and contributions until people who attended A.T. Johnson High School kicked open the door of inclusion. A.T. Johnson High School is now a museum and it has been placed on the list of historic sites in Virginia. This is a manifestation of African Americans knowing and valuing their history; they fought tooth and nail to get that historic recognition and for the former school to operate as a museum.

Rev. Sharpton’s eulogy made me further reflect on how knowingly or unknowingly, wittingly or unwittingly, and consciously or unconsciously we as African Americans have been inculcated into American political culture through various agents of political socialisation. Most of us celebrate Thanksgiving, the 4th of July, and Presidents’ Day which for years was George Washington’s Birthday. Have we really taken the time to reflect on the meaning of these holidays and to ask ourselves why we celebrate them? We celebrate them because we are Americans; they represent American culture and we are part and parcel of American culture. Some would even argue that without the influence of African culture, there would be no American culture.

This provides an explanation for the frustration, pain, anger, sadness, and hurt felt and experienced by African Americans following the murder of George Floyd. Despite serving in every war that the country has engaged in, pulling themselves up without any boots or bootstraps following their emancipation in 1865, establishing their own businesses, newspapers, sororities, fraternities, civil rights organisations, and benevolent organisations—along with the cornerstone that nurtures and undergirds the community to this day, churches—African Americans are still not viewed or treated as American citizens. Yet we continue to keep and pass on these names of the slave masters.

Finally, deconstructing the social construction of race within the context of the murder of George Floyd as an African American teaching in Nairobi at a university that is half Kenyan and half American has been frustrating on the one hand and fulfilling on the other. The frustrating part is that I am the only African American on campus. It is not the same as being the only African American on a predominantly white campus or the only one in a department in the United States. Still, during the last couple of weeks, I have felt like a one-person island out in the Indian Ocean. This has been made worse by the closure of the University as there is not the opportunity to have conversations in the office or in the hallways and to be honest, I am not so sure that my colleagues would even want to have these conversations.

The positive aspect of teaching here is that I am free to openly and honestly discuss the social construction of race and its legacies that are still experienced by African Americans. I am liberated from the accusations that I teach about race too much. I am free from being labelled opinionated when I speak truth to knowledge about racism and discrimination. I am free from white students being intimidated by me because I am Black and a woman. Students may be intimidated by me here, but it’s not because I am Black. I am free because I am included, I am at the table, I am not marginalised. I am not here because of some misguided policy on diversity. I am free because on campus I do not experience micro aggressions. I am not viewed as an affirmative action hire who earned a PhD that will never be valued in the same way as that of a white professor.

Furthermore, the social construction of race and the murder of George Floyd and others by the police and private citizens has made me reflect upon and appreciate my experiences of living here and not having to deal with daily micro aggressions: there is no such thing as driving, dining, shopping, vacationing, birdwatching, swimming, walking, jogging, or hiking while Black. No one knows or cares who you are. People automatically assume you are Kenyan until you open your mouth. And when they discover that you are American, there is a certain amount of respect that you are given in restaurants, hotels, on safari, at the Coast and in salons.

In sum, here your accent trumps everything whereas in the United States your skin colour trumps everything. Observing all the developments surrounding the death of George Floyd while living in Kenya has solidified in my mind that there is a racial tax on many levels in the United States. I do not pay that racial tax here. I am no longer being racially surveilled. I can wake up, go to campus, take walks, go shopping, go on vacation, live my life, and simply breathe without thinking about being Black every single day.

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Prof. Cassandra Veney is Professor of International Relations at the United States International University.

Reflections

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Reflections

Sustainability Is Key in the Management of Natural Resources

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Reflections

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

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

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Time To Address Compensation and Resettlement Issues in Kenya’s Mining Sector
Photo: Unsplash/Japhet Khendlo
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Vision 2030 promises to transform Kenya into an industrialised middle-income country and, to that end, proposes ambitious projects which include the Standard Gauge Railway (SGR), the Lamu Port-South Sudan-Ethiopia Transport Corridor (LAPSSET), multipurpose dams and the development of oil and other mineral resources among others.

Large-scale projects, including mining projects, catalyse socio-economic development, which is what many people expect and can easily see. On the other hand, they undermine human rights, cause livelihood disruptions and break up the social fabric of the affected communities. This article focuses on this second aspect and examines compensation and resettlement policy gaps and challenges with respect to the mining sector in Kenya.

Large-scale mining projects lead to involuntary displacement, deprive those affected of the use or access to their resources, disrupt sources of livelihood and interfere with the cultural fabric of the affected communities. International safeguards developed by the World Bank and the Africa Development Bank on involuntary displacement recommend that all community concerns must be taken seriously in the planning and implementation of all investment projects.

World Bank guidelines provide that involuntary resettlement should be avoided and where it is unavoidable, all the people affected must be fully and fairly compensated. Moreover, compensation and resettlement should be seen as an opportunity to improve the livelihoods of those affected. However, the legislation currently guiding compensation and resettlement in Kenya does not regulate these processes in a clear and specific manner.

Take for instance the story of Phase 2A of the Standard Gauge Railway (SGR) that runs from Nairobi to Naivasha traversing Nairobi, Kajiado, Kiambu, Nakuru and Narok Counties, a project which was delayed for three years due to land acquisition and compensation issues.

In the June 22 2019 edition, The East African published stories of human suffering caused by the project. A mother of three, Ms Kusero was promised Sh2 million for her quarter-acre property but a house made of recycled oil drums is all she received as compensation for allowing the SGR to run through her land. Hers was one of many such stories of families whose land was compulsorily acquired for the project. On paper, they were paid billions in compensation but in reality, only a few actually received compensation.

Ms Kusero says that for people like her there were no negotiations and raising grievances regarding compensation was extremely frustrating. “You go to the National Land Commission and you are asked to go to the Ethics and Anti-Corruption Commission. Then you are sent to the Directorate of Criminal Investigation and Director of Public Prosecutions before being bounced back to the National Land Commission. In the end you get frustrated without redress.”

The second story is about the extractives sector and concerns compensation owed by the Kenya Fluorspar Company to the Kimwarer Community in Kerio Valley. After exploration and confirmation of the existence of viable fluorspar, the company excised land and started its mining operations before it had compensated and resettled those it had displaced. There were no consultations whatsoever regarding compensation.

A task force report on the Review of Fluorspar Mining in Kerio Valley established that some attempts at compensation were made. In 1982, two cheques of Sh3,606,000 and Sh500,000 were released by the National Treasury to the District Commissioner to compensate the affected residents. The land compensation value was determined at Sh450 per acre of which Sh50 was deducted directly by the District Commissioner as contribution to a local school fundraiser in the Kimwarer area.

The affected residents who wanted alternative land in compensation were promised they would be resettled on Kilima I and II and Grosell farms in Uasin Gishu. They were also promised that they would receive shares in the Flourspar Company and in the Wagon Hotel in Eldoret town. Those among them who attempted to settle in the promised land were later evicted and accused of invading private property. To date, the victims of these atrocities have not received justice.

Gaps and challenges in the policy and legislative frameworks

Large-scale mining operations require massive tracts of land and often lead to significant human rights violations. Communities whose livelihoods depend on land find themselves in a struggle to defend their rights against the mineral rights granted to investors who are usually large-scale multinationals acting with the full support of host governments.

Kenya’s constitution sets out the general principles of equitable, sustainable and efficient use of land and establishes forms of land ownership. It vests ownership of mineral resources in the government, which means that any land with mineral resources can be compulsorily acquired in the public interest. It further protects the right to property from unlawful deprivation of ownership or limitation of enjoyment unless for public purposes or in the public interest in which case prompt, just and full compensation is required. It is from these provisions that mineral resource projects draw justification to cause involuntary displacement.

Kenya passed a new Mining Act in May 2016 to bolster the legal regime and reinvigorate the mining sector. The Act provides that where a mineral right disturbs or deprives access to the landowner, causes damage to property or occasions loss of earnings, the landowner may claim compensation whose payment must be prompt, adequate and fair.  It doesn’t define what “prompt”, “full” and “just compensation” mean. The mineral rights holder is responsible for all the compensation and resettlement costs.

Moreover, the Mining Act appears to overlook the sensitivity of cultural resources. It does not protect or seek to identify cultural assets. Instead, it provides that no demand or claim for compensation shall be made for any loss or damage for which compensation cannot be assessed according to legal principles. Cultural resources are sensitive owing to the level of emotional reaction they spark when interfered with. They include spiritual sites, shrines, medicinal plants and graves whose value cannot be determined using formal processes but only through consultations and negotiations in good faith. The World Bank’s cultural safeguards on involuntary displacement provide that cultural property should be identified, protected and appropriate actions taken to avoid or mitigate adverse impacts, and that interference with cultural assets may only be justified when the loss or damage is agreed to be unavoidable.

The Land Act empowers the National Land Commission on all matters related to compensation. The Commission has the responsibility to make inquiries and determine interests in the land, receive claims of compensation and facilitate just compensation. It does this on request from agencies seeking to compulsorily acquire land. From 2013 to 2019, the Commission paid-out Sh38.273 billion in compensation of which 75.2 per cent went to the SGR and road projects. Within the same period, neither land acquisition nor compensation was undertaken by the Commission for mining-related projects, which raises the question as to how land acquisitions and compensation for extractives are carried out.

Parliament passed the Land Value (Amendment) Act In 2019 to address concerns relating to compulsory land acquisition, compensation and resettlement. One of the gains in this law is that it defines “just compensation”, “prompt” and “full”, terms that are used in the Mining Act, the Land Act and in other laws without clarity.  Accordingly, “Just compensation” means a form of fair compensation that is assessed and determined on the basis of the criteria set out under the act. “Prompt” means within a reasonable period of time but not more than one year after the Commission has taken possession of the land. “Full” means the restoration of the value of the land, including improvements made on the land at the date of notice of acquisition.

It is to be noted that unlike in the past where the NLC was required to compensate the landowner before taking possession, the Land Value law now allows possession of the land before compensation is paid. This is contrary to the Mining Act which provides for prior payment of compensation. Taking possession before compensation would disadvantage the affected persons and the one-year period set for paying compensation is too long especially for large-scale mining projects that normally deprive the owner of use of property such as farmland, homestead and grazing areas. The World Bank standards require that compensation is paid in full before displacement or restriction of access.

The Land Value law also provides criteria for assessing the value of compulsorily acquired land based on a land value index to be developed by the Land Cabinet Secretary in consultation with county governments and approved by the National Assembly and the Senate. Assessing land value for compensation purposes requires wide consultations with the affected persons and the relevant agencies, which this Act does not seem to embrace. As provided for, the development of a land value index excludes the participation of the National Land Commission, land valuation agencies such as Surveyors of Kenya, government ministries such as the Ministry of Petroleum and Mining whose main work causes involuntary displacement.

Key issues and action required

The first issue is the fragmentation of the legal frameworks that guide compensation and resettlement in Kenya. The country lacks a national compensation and resettlement policy that standardises compensation and resettlement and ensures that all socio-economic and cultural issues arising from involuntary displacement are properly addressed. The national policy framework on compensation and resettlement should be developed taking into consideration international best practices and safeguards to provide a harmonised policy direction that considers all the complexities that come with involuntary displacement. The policy framework should broadly articulate compensation and resettlement in such a way that it is understood to be an opportunity for improving the livelihoods of the affected people rather than as a process to subjugate them and worsen their livelihoods. At the very least, regulations on compensations and resettlement should be developed for the Mining Act.

The second issue is the uncoordinated institutional approach for compensation matters. The National Land Commission takes charge of both land acquisition and compensation based on requests and funds from the acquiring agencies whose roles are often unclear. The suggested national policy should provide a clear framework for institutional coordination and harmonise the efforts of all relevant agencies; compensation and resettlement must be a multi-agency function. In this way, overlooking community concerns will be minimised and, more importantly, the processes will be more transparent and less fraudulent. Effective institutional coordination will also enable an integrated grievance redress mechanism.

The third issue concerns the land survey regime; it is mired in corruption, inherently opaque and exploitative. Compulsory land acquisition heightens emotions and ignites serious land speculation perpetrated by public officers with privileged information who collude with greedy elites to defraud the state through inflated land prices.

Reforms to introduce transparent land surveying and valuation are required. This means strengthening the policy frameworks and the institutions involved and also requires a robust mechanism for monitoring compulsory acquisition, compensation and resettlement. It should become policy that a compulsory land survey is undertaken prior to the compulsory acquisition of any unregistered land.

The fourth issue is the absence of cultural resources as a factor of compensation and resettlement in the available legislations. Disruption caused by extractive projects on the social, economic and cultural ecosystems of the affected people can never be truly compensated or restored. Compensation merely helps the affected persons to continue with their livelihoods but does not and cannot restore their exact loss.

Legislations guiding compensation should clearly recognise cultural resources and all assets with cultural meaning and value for the affected people as an aspect of the process of negotiating compensation. Effective community participation must be allowed in identifying and deciding the compensation for cultural resources that may be affected by mining projects.

The final issue has to do with the procedures for paying compensation. Where the project affects the whole family, it is unclear whether compensation is awarded to an individual or to a household. Capacity building for the beneficiaries on the use of finances is also a concern and because it is rarely undertaken, waste of compensation funds, family disintegration, homelessness and other socio-economic concerns ensue. Support mechanisms to ensure effective financial planning are therefore important.

The lack of a mechanism to monitor the payment of compensation is another concern, leading to serious irregularities, corruption and human rights violations. Furthermore, the approach to dispute resolution needs to be harmonised to recognise structures at the county level. As they currently stand, the Land Act, the Mining Act and the Land Value Act are inherently contradictory.

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

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