The recent cancellation of 31 mining licenses by Kenya’s Cabinet Secretary for Mining should be a wakeup call to political leaders and experts in the land and natural resources sector. The implications of the exploration and exploitation of billions or trillions worth of mineral resources in Kenya must be well understood and agreed on upfront.

Calls for compensation

Those who’ve been closely following developments in the sector will also have noticed that every announcement of some mineral or mineral oil find is quickly followed by concerns on land rights. In Turkana, communities and the County leadership have raised pertinent land issues following the discovery of oil. Those who own land at the coast where niobium and rare earth minerals have been reportedly found are keen to know how they too will benefit. Reports have it that the residents of Mui Basin in Kitui County want clarity on how they’ll be compensated and resettled now that a Chinese company has been awarded a tender to extract coal. In Kerio valley, land disputes have emerged following exploration for oil within the zone. Since land isn’t demarcated, competing clans are digging in to protect what they believe to be their land from land grabs. This pattern will continue and the county governments affected, along with the national government, must sort these concerns out before they boil over.

Global and Regional frameworks

The Framework and Guidelines on Land Policy in Africa advises African governments to put in place land administration systems that foster good governance of land and natural resources. Furthermore, the Food and Agriculture Organisation’s Voluntary Guidelines on the Responsible Land Tenure of Land, Fisheries and Forests require States to recognize and safeguard legitimate tenure rights, whether recorded or not, against arbitrary loss and evictions. The continental and global frameworks place good emphasis on the need to recognize and protect private and community land rights. This is best done through good policies and laws at country level

In the spirit of the regional and international frameworks, Kenya's policy and laws should provide owners of private and community land sufficient latitude and mechanisms to seek compensation of their land rights if compulsorily acquired or violated during the prospecting or exploitation of minerals or mineral oils. Compensation arises since under our constitution, private and community land under which minerals are found converts to public land.

Kenya’s national land policy and the new land laws fully recognize and protect private and communal land rights. The policy, the law and our constitution require that full and prompt compensation is made for legitimate land rights that have to undergo compulsory acquisition. The constitution indeed further requires Parliament to enact legislation to ensure that investments in property benefit local communities. It also obliges Parliament to ratify all agreements on natural resources. Legislation on benefit sharing is yet to be enacted while we are yet to see any agreements relating to the exploitation of natural resources tabled in Parliament for ratification.

Pay attention to new Mining Bill

In addition the draft Geology, Minerals and Mining Bill 2012 raises concerns which should be addressed before enactment. The Bill for instance doesn’t refer to the compensation provisions in the Land Act 2012 yet the Land Act contains the substantive law that should govern all compulsory land acquisition and compensation in Kenya. Moreover, the third schedule of the draft Bill provides for a 75: 25: 10 per centum royalty sharing ratio. The central government will take 75%, counties 25% and communities 10%. This must be clearly explained and agreed on before we begin to see benefit sharing wars once exploitation commences. Shouldn’t we also legislate how the royalties shall be spent?