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

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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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Augustine Masiga is the coordinator of Haki Madini Kenya Coalition.

Reflections

Stealth Game: The Proverbial Has Hit the Fan

The report of the Oakland Institute is simply saying what I have been saying since 2016. That “Community” Conservancies Devastate Land and Lives in Northern Kenya.

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Stealth Game: The Proverbial Has Hit the Fan
Photo: David Clode on Unsplash
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Many of my friends, particularly those from outside the conservation sector have been puzzled by the silence that has followed the release of the Stealth Game report by the Oakland institute.

This, my friends, is because you people mistakenly imagine that conservationists in Kenya are normal, functional human beings. They are NOT, and the rational ones are fewer than five per cent, the scientific threshold for statistical significance. For those of us who know them well, we can read and interpret this silence to a high level of accuracy.

First of all, rest assured that everyone who needs to see the report has seen it, including government officials at both county and national level. I personally forwarded it to an official at the highest levels of government, and the response I received was “thank you”—at least an admission of having seen the report. Interestingly, two senior county government officers also forwarded the report to me, leaving me wondering what exactly they see as their role in the whole scandal, as opposed to mine as an individual. The silence is only in the public sphere. I have direct contacts in a lot of private spaces where the Oakland report is causing a lot of wailing, gnashing of teeth and breaking of wind.

The key point we all need to understand here is that people are in trouble—bringing to mind that uniquely American expression about faecal matter hitting the fan and splattering everyone in its vicinity. Here’s why: A couple of years ago, a few colleagues and I visited the US House of Representatives in Washington DC to present a memorandum on human rights abuses in central Africa committed by the WWF under the guise of conservation, an issue we also brought to the attention of various European legislatures. It has taken time, but the cosh has come down on the WWF, culminating in a Senate hearing earlier this year, which has severely tightened the screws on them. Therefore, the consternation that has greeted the report is disingenuous, because none of this information is new—it is simply saying the same things that a few colleagues and I have been saying since 2016.

The conservation sector in Kenya routinely dismisses any questions from black Africans and the consternation is because the report is coming from an American institution, and cannot be dismissed on racial grounds. An amusing anecdote I’ve heard from one of the conservation groups is, “This is just the usual noise from Mordecai Ogada. . .” But when another member says, “No, it’s from the Oakland institute in the US,” all hell breaks loose with people crying “Oh my God! What are we going to do?”  In another forum, a senior participant (who obviously hadn’t read the report) dismissed it as lacking credibility, “Since the only source of such information is Mordecai Ogada (again!!??). When another participant pointed out the report was the result of over two years’ research she changed tack, attacking the author Anuradha Mittal based on her racial and family background. The strange thing is that this woman is also of the same racial background as Mittal! Many people will find this bizarre, but I don’t. Our conservation sector is so steeped in racial and ethnic prejudice that it is shameful. Apart from dealing with people who don’t want to hear me because I am black, I’ve had to deal with indigenous Kenyans who routinely tell me to keep off wildlife issues in northern Kenya because I am a Luo from western Kenya!

The key issue of rights violations is studiously avoided by conservationists to a ridiculous degree. I’ve seen conversations where The Nature Conservancy’s communications director is asking a whole group of conservation professionals how they can “counter Mordecai Ogada’s narrative”. A couple of years ago, the Northern Rangelands Trust hired Dr Elizabeth Leitoro as “Director of Programmes” and one of the key expectations was that she would somehow “control” Mordecai Ogada (yes, again) since over 20 years earlier I had been her intern when she was the warden at the Nairobi National Park. Dr Leitoro asked to meet me, and my son was patient enough to sit with us as we talked. She later launched a racial attack against me and my family on social media in defence of the NRT (she deleted the tweet and blocked me, but I still have a screenshot; the NRT got rid of her). This shows the neurosis bedevilling conservation in Kenya.

These conservationists will scream, shout and make personal attacks and noise about everything EXCEPT the problem at hand. Secondly, they are obsessed with appearances, so you will never hear a word said by any of the foreigners who run the show. It is always the ill-advised, ill-prepared but well paid locals who come out in robust (if somewhat foolish) defence of their captors. Right now the national government, the county governments, and conservation organizations are all tongue-tied because they don’t know how to dismiss criticism from the US, where their lifeblood funding comes from. USAID is the biggest conservation funder in Kenya, and the biggest grantee is the NRT, which confers on them God-like status here. All the other conservation voices like the Kenya Wildlife Conservancies Association (KWCA) or the Conservation Alliance of Kenya (CAK) that receive small-change grants cannot say a word against their “leader”, the NRT. That is why five days later, the CAK claims to be “still reading the report”. They are waiting to see which way the wind is blowing before they make any noise or break any wind in defence of their fellow Kenyans.

Mark my words, these people have colossal reach; that’s why even the government has said nothing. There was a major press conference in Nairobi on 17th November 2021 about the Oakland report, and all the major media houses in Kenya were present, but the story has been “killed”. They have a huge PR machine, and if anything in the report were untrue, they would have torn it to shreds. Their bogeyman, Mordecai Ogada (frankly I’m a bit flattered!), is not in the picture, so they cannot point fingers at me anymore, and must now address the ISSUES. I am informed that some heads have already rolled. They are big, but not big enough to kill the story in the US public policy space. The WWF learned that the hard way. There shall be wailing, there will be hypertension, some hyperacidity, diarrhoea and other stress-related illnesses, but it looks (and smells) like change is coming.

This silence isn’t of the golden kind, it’s the silence of sick, trembling cowards caught in a big lie. I have nothing to add to the Stealth Game report, but wherever and whenever I will be asked to say something about it, I will not let anyone get away with trying to look shocked. I will always state just how I told them about this injustice five years ago, but it never mattered then. Because I am black, if truth be told.

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Reflections

I Know Why God Created Makeup

I am an economic migrant without the luxury of choice. I am not ready for Kenya yet so I must wake up, put my makeup on and take up my station by the dialysis machines.

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I Know Why God Created Makeup
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It is half past five in the morning and your eyes are heavy with sleep. It is fascinating that they should be this lethargic, yet they would not close for a wink or two in the past eleven or so hours of the night. Lately your body seems to be operating on a paradoxical circadian rhythm– sleep when you shouldn’t and stay awake when you ought to be sleeping. You are a nurse and constantly tired. Translated, it means that you are one patient away from a mortal accident. You slap the alarm clock into silence, eyes half open set another alarm for half past six on your mobile phone, which has permanent residency under your three pillows.

You have been using three pillows for a while now. There does not seem to be one single shop in the world that sells decent pillows. The pillows in this city are as thin as a tongue. The lowlife of pillows. They smell of dying hope and unhappy thoughts. They are the sopranos in the pillow choir. Irritating but necessary. We therefore use three of them to allow them to accord each other some moral support. You miss fluffy pillows. Pillows like the ones you lay on at that posh hotel in Naivasha during your disastrous honeymoon a few years ago. Nostalgically, you go back to Naivasha in your sleepy mind.

There is a hazy recollection of that honeymoon. It was not meant to be because the wedding was not to be either. But they both happened. You know they did because you can hear yourself screaming in agony as another harsh word lands on your soul. But despite the honeymoon’s calamitous ending, you miss the pillows. They took to your torrential tears like a babe to its mother’s breast. They soaked the tears up perfectly and left no traces. He never once stirred. He was so drunk he could have been half dead. You had wished for the latter before you met Jesus. We do not think such thoughts nowadays and if we ever do, we will blame it on these scandalously uncomfortable pillows.

The summer morning’s sun tears precisely through your curtains like a surgeon’s blade. You love summer but you don’t like the glare of the morning sun. It is too bright. Accusatorily bright. Like it came to remind you what a slob you are for snoozing your alarm. It stands there, hovering over you like your mum when you wouldn’t complete your homework but wanted to read a Harry Potter novel instead. Mum would not go away, nor will the sun. Begrudgingly you wake up. Legs dangling onto the side of the bed, you will the rest of the body to join them on the peach-coloured bedroom rug on the floor. You miss the days when peach was just some fruit.

Eyes still closed, you head to the bathroom. You are startled into alertness by the girl staring at you in the mirror. She is as hopelessly worn out as a politician’s promise after campaigns. She looks like a thousand trucks ran over her and a group of snow-white owls perched on her hair. The wild hair tendrils falling on your face are a pasta disaster. My God, the lint from those pillows! You whisper. It is however more than just lint. Your eyes are red and puffed up. Like you hid two baby donuts under the eyelids and now the world can see your secret eating habits.

You are expected to be at work by half past seven, nursing patients. The COVID-19 pandemic rages on and you are not sure how much longer you can keep it together. Take that lovely patient yesterday, for example. She stood out from the first time you met her. She allowed you to needle her dialysis fistula as a new nurse. She was welcoming. Showed you pictures of May, her cat. Always had a joke for everyone. She entertained the unit with great panache. She had perfectly manicured nails which put your grooming routine to shame.

For fifteen years, kidney failure never took her life. But she died yesterday. She contracted COVID-19 and passed away. This is not an isolated case. The story keeps repeating itself. Like a repetitive bad dream, the carrousel of mortality keeps coursing through the hospital.  Too many dialysis patients have been lost to the coronavirus.

Nobody acknowledges it but your colleagues are gutted by her death. Their demeanour is typically British though, they are long suffering. They wear resilience on their faces and spot plastic smiles to hide the pain. British nurses are averse to complaining. They take it all in their stride. Either that or quit. What would you not give to be able to quit nursing right now!

On the other hand, you are an economic migrant in the United Kingdom. Your life in the UK is governed by the terms and conditions of your visa. The terms say you are to be a nurse for the remaining period on your visa. You cannot leave. You risk being deported to Kenya if you exit nursing at the moment. You are not ready for Kenya yet. You envy Amy and Moraine. Two highly skilled kidney nurses from Scotland. They recently quit nursing altogether. Amy went back to university to study accounting while Moraine has started a coffee shop. The luxury of choice.

You take a quick shower, scrub your hair so hard as if you were shaking your brain from a lingering nightmare that it half hurts. Six and a half minutes later, you are staring at yourself in the dressing mirror. You have been in this flat for a year now and have never once used the dressing mirror like you want to use it today. To glam up the top half of your face.

Following a YouTube tutorial, you start applying acres of ridiculously expensive products on your exhausted face. Your patients are expecting a buoyed-up nurse; that is what they must get. This is why God created makeup. You pay close attention to your eyes. The windows to the soul. These windows needs some maintenance. The eyebrows are up first.

Your eyebrows are a strange phenomenon. The hairs are few and far between. You can never shape them perfectly to save your life. You scribble and doodle with some eye pencil YouTube influencers swore by and finally manage to draw two diagrams of West African evil spirits chasing after one another. Your signature mismatched eyebrow look.  Feeling accomplished, you open your eyes wide and, stroke after stroke, you apply mascara on your eyelashes. The damage is then covered in some dark eye shadow. Only the top half of the face matters. The face masks and visors worn at work have rendered the lower half of the face irrelevant. Who wants lipstick smears on their face mask? Not you, you conclude.

At twenty minutes past seven, you are at work already. You are helping prepare the dialysis machines. Jean, your nurse colleague streams in. She has had her eyes done too. She is wearing some glittering eyeshadow. Her eyebrows look like what yours would be like when they grow up. You can see a hint of foundation on her forehead. You let out a sigh of relief. God created makeup for tired nurses, you surmise.

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Reflections

The Charles Mugane Njonjo I Knew

Much will be said and written about Charles Njonjo. The Charles Njonjo I knew was a steadfast friend and a man of his word without hesitation.

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The Charles Mugane Njonjo I Knew
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A lot has been written and a lot more will be written about the late Charles Mugane Njonjo who has passed away. I would like to tell my own personal story. I never knew him as a bureaucrat or politician. Indeed, our paths crossed immediately I left high school in 1983. Together with colleagues, we had written a play and planned to perform it for the public. We searched our minds for a public figure who would agree to come as guest of honour on opening night. We sought someone who would attract public attention to what we were doing, but more importantly for us 17-year-olds, someone who would agree to show up. Charles Njonjo’s name was all over the news at the time. His political career had just been truncated amid the prolonged political drama of the “traitor affair”. He was a figure of great public fascination for a variety of colourful reasons. We also had the names of other public figures on our list and I was tasked with reaching out to them.

Frankly, I wrote to Charles Njonjo not expecting to hear from him. He replied immediately, though, and accepted the invitation to be guest of honour at the opening night of our play, The Human Encounter, at Saint Mary’s School in Nairobi. Once he accepted the invitation, we excitedly proceeded with preparations for the opening night. A few days later, however, we were informed that, unfortunately, the authorities had deemed Mr Njonjo’s presence at our event unacceptable and the decision was not negotiable. I informed my colleagues and we decided that since we had worked hard on the production we would obey the orders from above and proceed with our play without Mr Njonjo. There was no need for a fuss. I then had the embarrassing duty of disinviting Mr Njonjo when he had already accepted to be our guest of honour.

I spent a whole night drafting the letter and in the end, my late father told me not to agonise excessively, “Njonjo likes to be told the truth directly.” So I wrote the disinvitation letter as clearly and as respectfully as I could. I asked a friend of his to pass it on to him and did not expect to ever hear from him again. The message I received promptly back surprised me. Njonjo expressed his deepest appreciation for the invitation and explained that he fully understood why it had been withdrawn. He asked that we remain in touch. I was deeply relieved. Over the years, he would reach out to me through family and friends and we would interact jovially, remembering the letter I had written retracting his invitation as guest of honour. “No one has ever done that to me,” he would joke over tea.

In the early 1990s, as political pluralism was returning to Kenya, violence broke out in Nyanza, Western and Rift Valley provinces. At one point, hundreds of thousands of Kenyans were displaced as our elites arm-wrestled for power. I travelled to Laikipia and then to Burnt Forest and was aghast at the state of the internally displaced that had been forced from their homes by the violence. Together with Dr David Ndii and Mutahi Ngunyi we launched the “Kenyans in Need” appeal. The then chief editor of the Daily Nation, Wangethi Mwangi, gave us free advertising space to mobilise resources for the displaced – especially those in Ol Kalou who had been evicted from Ng’arua in Laikipia. The late Archbishop Nicodemus Kirima of the Archdiocese of Nyeri agreed to use the relief infrastructure of Catholic Church to distribute any donations that came our way. Laikipia fell under Kirima’s remit.

The response to the appeal was surprising in its scale. People donated second-hand clothes, books, shoes and cash to the appeal. We received around KSh1 million worth of donations over the following months. We delivered the first batch directly to the philosophical Archbishop Kirima at his official residence in Nyeri, unique because of its specially built library full of the books he clearly loved. Our biggest and most consistent donor throughout the entire enterprise was Charles Njonjo. He was not keen to have his name mentioned but we would sit at his home drinking tea and reflecting on the political situation in the country.

When I joined government in 2003, Njonjo remained one of my steadfast providers of moral support. When news broke that I had been moved from the Office of the President to the Ministry of Justice, the first call I received was from Charles Njonjo. “You’re going to resign immediately, aren’t you?” he asked in his typically direct way. In the end, I didn’t. I sometimes wistfully recall his advice at the time. We kept in close touch.

When my situation in the Kibaki government went belly up in 2005 – as he had predicted to me many times – and I found myself in exile, Charles Njonjo became an even more steadfast friend. He stayed in touch and whenever he called, he would always enquire about my personal circumstances. He was a most interesting person in that way, loyal to his friends to a fault. Once you were his friend, he stood by you no matter how atrocious the circumstances. He would call to tell me he was coming to London and we would spend the day together simply walking the city, chatting and drinking tea. Back home I found out he was in constant touch with my family, offering moral and any other kind of support that might be needed.

When I returned from exile, one of the very first people to invite me for tea and a catch-up was Charles Njonjo and we took up from where we had left off in 2005. His observations on politics and about certain politicians were often wryly hilarious. His capacity to read people accurately was something I learnt. We would sit in his Westlands office and I would seek his opinion on this or that political interlocutor and in typical fashion he was always direct – “solid fellow”; “believe only half so-and-so says”; “take that one seriously”, etc. He was particularly dismissive of ethnic chauvinists and insisted that they held Kenya back in fundamental ways.

Charles Njonjo and I kept our friendship quiet. In part, this was because some of his diehard enemies were also my very good friends – the late legal giant Achhroo Ram Kapila SC among others. So, we didn’t discuss his enemies; he advised me on mine. Much will be written about Charles Njonjo and even though there was much we totally disagreed on politically, the Njonjo I knew since I was a teenager was a man of his word. He was a dear friend in ways I have never been able to share. There is not a personal problem that I raised with Charles Njonjo that he didn’t immediately seek to solve in his no-nonsense style. Njonjo could be a very funny man, full of jokes and insightful observations without a taint of bitterness. To me he was funniest when he joked in Gikuyu, which some people thought he couldn’t speak.

As I have said, much will be said and a lot will be written about Charles Njonjo. The Charles Njonjo I knew was a steadfast friend and a man of his word. I have lost a dear friend and wish his family succour as they mourn him at this time.

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