BWIRE: Good governance the cure for rot in Kenyas mining sector

While the passing of the Access to Information Act 2016 was expected to among other things increase transparency in manning public resources, public ignorance and a weak legal framework to promote whistle-blowing still stands in the way of achieving this.

The worst hit is the mining sector where corruption risks are very high given the amounts, distribution arrangements (national government, county governments and community) and environmental impacts associated with the sector. A number of players are involved in the sector and the government is making headway in promoting the exploitation of the sector as a way of increasing its contribution to national development.

Among the plans the government has following the passing of the Mining Act to push for the full development of the sector is re-configured and upgraded cadastre system 2016 to improve knowledge on the online licensing system, working on establishing a mining institute to train middle level technical staff for the mining industry, put up a gem cutting centre and to participate in the African Mining vision activities.

The Constitution provides sufficient guidance in the management of these resources as outlined in Part 2 of Chapter 5.  The Constitution obligates the government to ensure sustainable exploitation, utilization, and management of natural resources while ensuring such resources are utilized for the benefit of Kenyans. The Constitution also requires that Parliament enact legislation ensuring that investments in natural resources and property, benefits local communities and their economies.

Governance issues 

There is also the elephant challenge of dealing with a myriad of governance issues to overcome the vexing problematic factors that are cited by investors when doing business in Kenya: these are corruption, access to financing, adequate infrastructure, crime and theft, tax, inflation and inefficient government bureaucracy. We cannot therefore afford to slip into a comfort zone and assume that we have reached the Promised Land.

According to a report Corruption Risk Assessment in Mining Awards, 2017 published by Transparency International Kenya, due to weak whistle-blowing mechanisms, a number of cases of corruption in the sector go unreported due to lack of confidence in the authorities mandated to handle such cases.

Given that it’s a multi- million dollar sector with a lot of players including international investors, middlemen and communities involved, the continued lack of comprehensive complaints handling mechanisms in the country playing a big role in inhibiting people from reporting cases of corruption. The findings further indicate that despite the existence of the Access to Information Act, 2016, there still exist gaps with regards to knowledge of the legal framework that governs the mining sector in Kenya and availability and accessibility of relevant public documents and/or records.

The Corruption Risk Assessment identifies risks which are likely to occur in the award process which include: speculation around land that is subject to a mining permit application, lack of verification of the accuracy or truthfulness of environmental impact assessment (EIA) reports by the relevant authorities, political and external interferences and community participation among others.

The report recommends different intervention levels that will help support transparency, accountability and good governance of the mining sector. As a matter of urgency, following the passing of the Mining Act, the ministry needs to fast-track the gazettement of all the necessary mining regulations and guidelines, sensitize companies, affected communities and all the other relevant stakeholders as a way of opening up the sector, simplify procedures required in acquisition of mineral rights and NEMA ensures the publication of the EIA reports to promote access to information on the impacts of the proposed projects.

The study also recommends the monitoring of the operations of the Minerals Rights Board to ensure its compliance with the laid down procedures in making recommendations for issuance of licences, proactively seek information on the different mineral licensing processes to effectively engage with mining companies and government departments and ensuring adequate representation at all forums where deliberations on minerals take place.

Mining companies should develop internal policies to promote transparency and engagement with communities based on best practices such as the Informed Free Prior Consent Standards while at the same time adopt integrity management initiatives within the organization in line with legal frameworks available locally and at country of origin.

The Writer is Deputy CEO at the Media Council of Kenya.

victor@mediacouncil.or.ke