Seal loopholes in Mining Act to control wars

Historically, mining has been an emotive subject and the discovery of minerals has caused violent and bloody conflicts pitting interested parties

Such conflicts have destroyed whole nations and indeed some countries have never enjoyed peace due to wars to control the mining zones.

A classic case scenario of the common saying “more money more problems.”

It seems the more mineral rich a country, the more the conflicts, the more the warfare.

These conflicts have even made it to the big screen. The movie Blood Diamonds was a blockbuster.

It is interesting to note that the name “blood diamond” refers to a diamond mined in a war zone and sold to finance an insurgence.

It seems that most of Africa’s diamonds are really blood diamonds.

The scenario in Kenya is not as bleak but indeed there have been media reports of violent conflicts in the Coastal region due to mining activities.

There has been a large outcry by activists who feel that large mining projects are not only harmful to the environment but also to communities due to poor compensation mechanisms.

What does the law on mining say?

It says that all unextracted minerals belong to the Government unless it has vested its interests to another person.

It is illegal to prospect for minerals without Government authority.

The Government does issue, on application, prospecting rights and the rights allow the prospector to prospect for minerals, as well as dig shafts and trenches in relation to prospecting.

The rights granted may be exclusive, meaning that the licensee is granted the sole rights of prospecting on terms as may be contained in the license.

Any minerals obtained in the course of prospecting remain the property of the Government and shall not be removed from the area where discovered.

Any discoveries of minerals must be reported.

Meanwhile, while in the course of prospecting, any damage caused to the rightful owner of the land shall be compensated by the prospector.

Interestingly, some land is exempted from prospecting and these include cemeteries or land used for public purposes, land situated in a township area, near a railway line, trust land, public streets and private land.

Therefore, before a prospector can prospect for any minerals on your land, they require your consent and the prospector remains liable for any damages they cause to you in the process of prospecting.

Section 75 of The Constitution enshrines a citizens’ right to hold property without interference and this includes land.

No property shall be taken by the government or any other person except where such acquisition is necessary to enhance defence, public safety, morality, health and for development.

However, the Government may acquire mineral rich land compulsorily for any of the reasons afforested.

This is especially so if the acquisition shall have a bearing on development of the nation as a whole.

Adequate compensation

Even then, adequate compensation should be paid out to the land owner under the provisions of the Land Acquisition Act.

The Mining Act empowers the Commissioner for Mines and Geology to inquire into and decide all disputes concerning disputed boundaries of any area under a prospective mining right, any wrongful act committed in the course of prospecting for minerals and assessment of compensation.

The civil court within limits of the prospecting zone or mining area shall enforce the commissioner’s decision.

The Act makes it a penalty for anyone to obstruct someone who holds a prospecting right from legally carrying out his activities and also makes it an offence for anyone who engages in violence while on any mining property.

Therefore, the law provides not only civil remedies but also creates criminal offences against those who obstruct or interfere with prospecting activities by a prospector.

An armed gang known as Zurura has literally taken over mining in the coastal region.

There have been reported cases of violence and murders by the gang, the most infamous one being the murder of a renowned geologist who had been awarded some concession rights by the Government.

The Mining Act allows the Commissioner of Mines and Geology to make inquiries into such incidents.

The prosecution of this offence however, is the responsibility of the state.

It is hoped that there shall soon be a regulation to streamline the mining sector.

The current Act seems to have some loopholes especially as regards enforcement mechanisms in the event of disputes.