One of the more significant and impactful pieces of legislation, the Kenya Mining Bill 2014 was passed on its third reading last week. The bill repeals the former archaic remnant of a long-forgotten epoch, the Mining Act from 1940 and still in force, which fails to adequately meet the current demands of the emerging sector. The primary objective of the bill is to consolidate all of the current laws related to mining. It also seeks to implement a number of articles within Kenya’s Constitution pertaining to land management, respect for the environment and agreements for natural resources.
As the bill stands, there are certain concerns that still need to be addressed. A major concern is the wide discretionary powers held by the Cabinet Secretary, which belie transparency and good governance, though the latest draft has attempted to create a body known as the Mineral Rights Board that takes some powers, though minimal, away from the Cabinet Secretary. The definition of community in the bill is also disconcerting. In the Interpretation section of the bill, a community is defined as (a) a group of people living around exploration and mining operations area; or (b) a group of people who may be displaced from land intended for exploration and mining operations. The definition, worryingly, does not clarify what ‘around’ or ‘group’ means nor does it include other communities who may still be affected by mining operations.
Another issue is the failure to include provisions adequately dealing with consultation with communities in relation to mining activities. There should be consultation with communities in all aspects of the planning process according to international law and best practices, however the bill is silent on this. The bill has provided for royalties to be shared among the National Government – 70% to the County government – 20% and to the community where mining operations occur – 10%. This is an improvement from the previous allocation of 5% to communities. Finally, the Mining Bill outlines the acquisition of community land without consent if the Cabinet Secretary considers it to be contrary to national interest. This is a vague and arbitrary term. The bill fails to provide a solution for communities who refuse to allow their land to be used for mining. Natural Justice shall continue to follow up on the developments and discussions around this law with community members and partners as it awaits presidential assent.