Kenya makes big step in regulating mining

Titanium mining in Nguluku Maumba at the Coast: The new law is rich and well thought out. PHOTO | FILE 

By CATHY MPUTHIA

In Summary

• Bill awaiting assent will, among other things, mitigate conflict between miners, residents.

Mineral-rich countries, especially in Africa, have always faced a lot of challenges as mining in those countries has been politicised. Many have gone to war and have a lot of civil strife due to the politics that surround mining.

The movie Blood Diamonds details how diamonds are sold in Africa to finance war and conflict. Warlord Charles Taylor monopolised the blood diamond trade in Liberia and has been tried and convicted for war crimes.

A lot of these conflicts occur in mineral-rich countries that lack a proper regulation on mining. Kenya’s mining law has been a pre-colonial law made in the 1940s. However, a new Mining Bill is about to be enacted as it only awaits presidential assent.

The new law is detailed and was well thought out as it not only provides detailed technical provisions but also provides mechanisms through which the community and the country will gain from mining.

Many times, miners have been enriched at the expense of the local community and the environment but the proposed law has mechanisms of clipping the power of mining corporations.

The mining law finds its foundation on the Constitution and upholds the national land policy on equitable use of land. It also upholds the environmental provisions of the Constitution as well as policies of equitable sharing of natural resources.

This law shall regulate all classes of minerals including salt, construction materials, metals, precious stones to mineral water resources.

However, petroleum and some forms of gases are exempt. All minerals are owned by the State in trust for the people of Kenya. Every mineral discovery must be reported to the relevant Cabinet Secretary even if it is found on private land.

Qualifying persons can be granted mineral rights in the form of licences for large scale mining and permits for small scale ones.

One can be given prospecting, retention or mining licences. Prospecting licences enable the prospector to ascertain the feasibility of mining a particular mineral.

Mineral rights are for a specific period of time with a cap of 25 years while the right is granted subject to time, area, type of mineral and also conditions imposed on the holder.

Mineral rights are granted subject to land ownership rights. There is some land on which no mining can take place, for example parks and forests.

The right holder must seek the permission of the National Land Commission. Where one seeks to mine on another person’s or community land, he must enter into an agreement with the land owner.

The consent to mine on another person’s land forms an overriding interest, which means even if the land is sold to another, the consent to mine will still exist.

For miners, it may make more sense to acquire the land than seek mining consent. For those prospecting on land which may be defined as community parcel, especially in the marginal areas, they will require consent of NLC to mine or prospect. The government can forcibly acquire private land for mining subject to acquisition laws.