By Faith Alubbe, Program Advisor overseeing the Transitional Justice Program at the Kenya Human Rights Commission. Faith advocates for human rights-based governance mechanisms from the community level up.
Recently a range of extractive resources have been discovered in Kenya, including coal and mineral sand deposits (titanium ores such as retile, clementine and zircon), as well as oil and gas deposits, consequently making the extractive industry gain prominence in anticipation of a flow of large-scale investment into the sector. To this effect, the country’s development blueprint, the Kenya Vision 2030, has included oil and other mineral resources as the seventh priority sector with a high potential of spurring the country’s economic growth and development.
To regulate the extractive sector, a proposed bill is the subject of debate in the Senate. The Mining Bill 2014 is anticipated to give effect to Articles 60, 62, 69 and 71 of the Constitution of Kenya. The Bill is set to replace the Mining Act 19401, the Diamond Industry Protection Act2 and the Trading in Unwrought Precious Metals Act3.
One aim of the new Bill is to address grey areas in regards to upstream and downstream extractive industry issues. For instance, the Bill has proposed various provisions intended to promote best governance practises in the extractive sector in Kenya and benefit sharing mechanisms between the National Government, County Government, the Investors and the host community.
However, the Bill does not yet adequately address several crucial issues. These include: securing the rights of the host communities to benefit from the natural resources found on their land; ensuring the full inclusion of women in contract consultations and informed consent processes; providing for the reclamation of land that has been exhausted of minerals; poor trade; and, an unclear eviction, compensation or resettlement framework.
Furthermore, the country faces a number of major challenges that could inhibit the government, the local private sector, and communities from benefiting fully from the discovery and exploitation of extractive resources. The most obvious of these challenges is political, since Kenya is at a nascent stage of implementing its new, devolved, two-tier system of governance, which consists of a national government and 47 counties. With a relatively new governance structure in place, the question of sharing of natural resources is ambiguous, although the Mining Bill has proposed a formula on the same. Additionally, conflicting policy, regulations and practices between the national and county governments, and between the Senate and National Assembly need to be addressed to enable communities to adequately benefit from local extractives.
Challenges faced by women working in the extractive sector
In addition to the myriad number of challenges in regards to the management of the extractive sector, the host communities and women at the local level are further disadvantaged. In most rural areas where these resources are explored, women are working as small-scale miners or as casual laborers in these mining companies. In areas like Taita Taveta, Migori, and Kakamega amongst other areas, women mine various extractives at a small scale, process the raw extracted mineral and sell it at very meagre prices. Small-scale women miners lack the requisite capacity to be able to negotiate for better contractual deals. Most of the small-scale processing is done using manual intensive processes and in some instances harmful chemicals like mercury are used, harming the women’s health. In addition, some of these women are subjected sexual exploitation in order to get better deals or rates.
Women in such circumstances often live in patriarchal settings where their voices are not appreciated and they lack a clear understanding of policies and procedures that should be followed regarding sharing the benefits from natural resources. These women are usually not even involved in the drafting of benefit-sharing agreements. Lastly, lack of transparency with regard to contracts between investors and the government has prevented any form of dissemination of contract details to the host communities, hence limiting access to information.
Even at the community-level the aspect of free, prior and informed consent may not be considered, let alone at the household level. In certain incidents this is due to customs and traditions that dictate that the husband has the final say on any matter. Failure to involve women in the consultation process may lead to displacement without due consideration to a woman’s role in meeting the subsistence needs of her family. Payment of compensation and royalties is often directed to men “on behalf of” their families. This may deny women access to and control over the financial benefits of an extractive project, thus disempowering them or exacerbating existing inequalities.
Additionally, women-headed households may not receive payments if they do not have a male representative. Often women are solely responsible for subsistence activities and providing food for their families, and the effects of environmental damage and degradation can undermine their capacity to provide adequate food and clean water. This can subsequently lead to an increase in their workload such as having to walk greater distances to access water, fuel/wood, forest products and land to plant food crops.
Sharing knowledge to point the way forward
As a way forward, knowledge of the laws that govern the extractive sector in Kenya should be disseminated at local and national levels. This can be done through robust advocacy initiatives conducted by state and non-state actors to create awareness of the legislative and policy frameworks. When communities at the local level, including women, comprehend the protection procedures and gaps that exist in the law, they can identify, define and claim their rights by demanding inclusion, consultation and participation to ensure that free, prior, and informed consent is an entrenched practice in the extractive sector.
Recognition, training and education of all stakeholders would ease governance challenges in the sector. Lastly, women working in the extractive industry should be trained on how to establish and run micro-financing institutions and revolving funds amongst organized women groups. This will assist such groups to save and also be able to secure loans to invest into their small-scale mining activities, access health care and be able to seek redress in cases of abuse or discrimination.
The reform of Kenya’s extractive sector can only be complete when host communities and indeed women are provided with balanced and objective information in regards to the anticipated natural resource extraction and the large scale investment that will be set up in their locality. This will assist them in understanding the issues, alternatives, opportunities and/or solutions to arising issues.
Further to the foregoing, the extractive sector will bring the most benefit to Kenya’s people when its development and regulation takes into account major trends in the country, including the convergence of poverty, insecurity, climate change, and threats to biodiversity, among other factors.
If a society is to achieve set development targets like the Kenyan Vison 2030, then participation of both genders to improve their societal living standards is essential, hence the need of realizing gender equity in every sphere which is critical to sustainable development in Kenya.
1Cap 306 Laws of Kenya
2Cap 310 Laws of Kenya
3Cap 309 Laws of Kenya