Ensure Just And Fair Benefit From Extractives For All

ENSURE JUST AND FAIR BENEFIT FROM EXTRACTIVES FOR ALL

COMMUNIQUE

See Also – Keynote Address by Rev Canon Karanja during Jukwaa La Madini

PREAMBLE

The Second Jukwaa La Madini, Mafuta na Gesi (National Conference on Mining, Oil and Gas 2019) has been held at Safari Park Hotel, Nairobi, from 24^th – 26^th September 2019 bringing together more than 200 community members from 11 counties, as well as representatives of Community Based Organizations, Civil Society Organizations, Faith Based Organizations, industry operators and the government. The Conference was guided by the theme “Just and Fair Share of Benefits from the Extractives Sector”.

The Conference recognized that Kenya is endowed with more than one hundred types of extractive resources that include minerals, oil and gas. However, though the extractives sector contributes more than KShs 70 billion to the economy, the communities residing in the areas where the extractives are exploited have not benefited from the same as expected.

Appreciably, some progress has been made in addressing the concerns raised during the Jukwaa La Madini, Mafuta na Gesi held in 2018, but more remains to be done.

In this regard, the Second Jukwaa La Madini, Mafuta na Gesi wishes to communicate the following.

1. BENEFIT SHARING AND MANAGEMENT

This Jukwaa calls to mind the provision in the Constitution of Kenya 2010 in Article 69 (1)(h) that requires the state to “utilize the environment and natural resources for the benefit of the people of Kenya”. Further to this, the Mining Act (2016) in Section 183 requires holders of mineral rights to pay royalties at a rate prescribed by the Cabinet Secretary, and that the community where the mining operation occur are entitled to ten percent of such royalties. It is however a key concern to us that there is no framework for disbursement of the royalties to the county governments and the communities.

In addition, this Conference is concerned that the Ministry of Petroleum and Mining is yet to finalize the Guidelines required for the development and implementation of Community Development Agreements signed between large scale operators and communities, as required by Article 47 of the Mining Act 2016. This is unnecessarily denying communities the benefits that are to be specified in the Agreements.

The guidelines will also specify how communities will access information to enable them competently compute the one percent that the company is meant to spend on Community Development Agreements.

While this Conference appreciates that the Petroleum Act 2019 requires all operators in the extractives sector to comply with local content requirements, we note that specific regulations and guidelines on the same are yet to be developed.

In view of the foregoing, this Jukwaa La Madini, Mafuta na Gesi 2019:

• Calls upon the Ministry of Petroleum and Mining to speedily finalize the requisite guidelines to ensure that communities can promptly benefit from the extraction of natural resources in their areas.
• Calls upon Parliament to finalize and enact the Sovereign Wealth Fund Bill 2019 and the Kenya National Mining Institute Bill 2019 to facilitate proper usage extractive resources revenue so as to benefit current and future generations.
• Urges the Ministry of Petroleum and Mining to finalize and implement the Gender Strategy and Action Plan for the Mining Sector; the Draft Community Development Agreement Guidelines; the Draft Model Community Development Agreement; the Draft Mining (Local Equity) Regulations; and the Strategic Plan (2018 – 2022) for the mining sector.
• Call upon the Ministry of Petroleum and Mining as well as the companies involved in natural resources extraction to publicize information on amounts paid through royalties and spent through Community Development Agreements as well as actions undertaken under Local Content commitments as per the law.
• Urge the Cabinet Secretary for Petroleum and Mining to urgently gazette the Community Development Agreement Committees.

On their part, the organisations partnering with communities in this Jukwaa La Madini, Mafuta na Gesi will continue to build capacities of communities to advocate for fair and equitable benefit from the extractive sector.

2. LAND ACQUISITION, COMPENSATION, RESETTLEMENT AND COMMUNITY LAND

The primary resource in the extractives sector is land. For this reason, many communities in Kenya have been denied their fair share of benefits and opportunities to participate in the sector due to shortcomings in land adjudication and registration. Quite often, community members have not been adequately compensated when their land is earmarked for extractives operations. There are numerous instances where the government and investors gain consent from and even compensate people who do not belong to the affected communities. As a result, there are grievances surrounding the compensation of community members in Kwale, Kitui, Turkana and Elgeyo Marakwet counties. In this regard, this Jukwaa La Madini, Mafuta na Gesi 2019:

• Demands that the National Land Commission and the Ministry of Lands and Physical Planning fast track the development of the Compensation, Relocation and Resettlement Framework through an inclusive process. We especially insist that the life of a community should be better after relocation, resettlement or compensation, unlike the current situation where community members are disadvantaged.
• Calls upon the Ministry of Lands and Physical Planning to fast track the process of adjudicating and registering community land to confer rights of access, ownership and control to the communities.
• Calls upon the Ministry of Mining and Petroleum to comply with Section 119 of the Mining Act 2016 by publicizing all mineral agreements, including the ones made with Tullow Oil Inc and Base Titanium Limited.

3. ENVIRONMENTAL AND SOCIAL IMPACTS OF EXPLOITING NATURAL RESOURCES

This Jukwaa La Madini, Mafuta na Gesi 2019 is concerned that the social and cultural impacts of exploitation of extractive resources are not adequately assessed and addressed. The existing regulations that provide for public participation in the impact assessments are not being enforced.

In this regard, we call upon the Ministry of Petroleum and Mining and the National Environmental Management Authority to partner with non-state actors to expand the Environmental Impact Assessment framework to include other important aspects including Climate Change, Gender, Social and Cultural impacts. Further, the framework should provide for regular monitoring of companies on adherence to the Environment and Social Impact Assessments.

4. ARTISANAL AND SMALL SCALE MINING

This Jukwaa La Madini, Mafuta na Gesi 2019 appreciates that the Mining Act 2016 recognizes Artisanal and Small Scale Mining. Despite this, artisanal and small scale miners remain largely informal and require technical and financial support to enable them scale up their operations. This will facilitate improvement of their living standards without crippling their livelihoods. There is also a need to adequately address inclusivity in artisanal and small scale mining so as to appreciate the role of women and youth.

In this regard, we remind the Ministry of Petroleum and Mining that they committed to have the Artisanal and Small Scale Miners Committees gazetted within two months during Jukwaa La Madini 2018. That is yet to be done. We urge the Cabinet Secretary to fulfill this promise, and also facilitate the completion of the development of the Artisanal and Small scale Miners Strategy.

Related to this, we call upon the Cabinet Secretary for Petroleum and Mining to consultatively work with communities to demarcate and allocate mining areas for artisanal and small scale miners to end the persistent disputes with large scale operators.

On their part, the participants in this Jukwaa La Madini, Mafuta na Gesi have committed to undertake a comprehensive review of extractives-related laws and make recommendations for appropriate amendments within the next six months.

5. WOMEN AND YOUTH INVOLVEMENT IN THE EXTRACTIVES SECTOR

This Jukwaa La Madini, Mafuta na Gesi 2019 noted that women and youth experience the consequences of extractives projects in a more pronounced way than men yet they do not equitably enjoy the potential benefits. In this regard, this Jukwaa La Madini, Mafuta na Gesi 2019:

• Urges the Ministry of Petroleum and Mining to ensure that women and youth occupy positions in leadership of extractives structures.
• Urges the Ministry of Petroleum and Mining in liaison with National Gender and Equality Commission to enforce frameworks that protect women from sexual exploitation and gender based violence in the extractives sector.
• Calls upon the Ministry of Lands and Physical Planning and the National Land Commission ensure that women rights to land and property is recognized, promoted and protected.

6. CONCLUSION

We conclude by recognizing that as provided for by the Constitution of Kenya 2010, exploitation of mineral resources is not meant to be hindered but is meant to benefit all Kenyans. As community members drawn from counties that have such resources, we are willing to partner with the government and companies in the extractives sector, but do require that the processes entailed bring just and fair share of benefits to the communities, and also respect the right of communities to free, prior and informed consent to the mining operations.

Signed on this 26^th day of September 2019 at Safari Park Hotel, Nairobi, by:

Signed on this 26^th day of September 2019 at Safari Park Hotel, Nairobi, by:

A Participant makes a point during the Jukwaa La Madini 2019

The Participants in the Jukwaa La Madini 2019

See Also – Keynote Address by Rev Canon Karanja during Jukwaa La Madini

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