A few days ago, the National Assembly passed a new Mining law to replace the old and outdated Mining Act of 1940. This followed wide consensus within the country that the existing legal framework was unprepared to respond to the realities of modern day extractive day industry.
It is therefore a step in the right direction. The passage of that law was followed by reports of concerns from the Senate that the law had not been submitted to them yet it was a law that concerned counties. This got me thinking about the current legislative process in the extractive sector.
From last year, there has been heightened action within the legislative front to put in place a modern and responsive regulatory framework for the sector. As part of this process many Bills have been drafted focusing on various aspects of oil, gas and minerals in Kenya.
These include a new Energy Bill, The Petroleum (Exploration and Production) Bill, The Sovereign Wealth Fund Bill, Natural Resources (Benefit Sharing) Bill, local content legislation amongst several others.
At first look this is commendable efforts in trying to address the country’s weak legislative base. It is the more important if it is looked at from the standpoint that as part of the efforts to ensure that extractive resources become a blessing and not a curse for the country, robust legal, policy and institutional frameworks are essential.
However, on closer reflection, there is a danger that the country needs to be aware of.
First, there is need for legislative harmony. One of the mechanisms for promoting harmony is to avoid proliferation of laws. In the natural resource sector, at some point there were over seventy seven statutes dealing with various aspects of the environment.
The same was true of land laws. It is for this reason that the Constitution and the National Land Policy called for consolidation of the various statutes governing land. This should be the guiding mantra for the extractive sector too.
While it is important for the country to address the different issues ranging from benefit sharing, local content to sovereign wealth, we should do so without legislative overload.
A multiplicity of institutions can only result in confusion, rivalry and ineffective regulation of the sector. It is also a potential avenue for rent seeking by the different agencies.
A related problem is the manner in which national government is developing the legislation. There are two ministries or Cabinet departments responsible directly for the extractive industry. These are the ministries of Mining and that of Energy and Petroleum.
The two are developing legislation from the standpoint that mining and energy ad petroleum are distinct and not interrelated. This is dangerous way to proceed. It would be more helpful if the respective Cabinet secretaries promoted greater collaboration in legislative enactment.
Thirdly, the national government should encourage harmony in its legislative proposals. It does not make sense to have different proposals on the same issue in separate pieces of legislation.
Fourth, while a Mining Bill has been passed and awaits presidential assent, the Mining Policy that was whose discussions started much earlier is yet to see the light of day.
The link between policies and laws in this country requires reconsideration. In several sectors, be it environment, wildlife and now mining one sees a disturbing pattern where the reforms to both law and policy starts at the same time but the law gets finalize while the policy stalls.
The end result is some decisions which are policy in nature end up being discussed and made as part of legislative options when they better dealt with at the policy level. In the end the country then gets a false focus on the law as the solution to all its problems.
Unless we do so we will always complaint about the inability of the law to solve the problem we set out for it leading to calls for amendments within few months of enactment.
Some problems require policy solutions, other require administrative action while others are about common sense and human relations. Knowing the differences and using the right tool for the different category is necessary for there to be successful regulation.
It is, therefore necessary for the country to reflect on its efforts to develop legislation for the sector and ensure that we do not end up killing a mosquito with a hammer, as my former teacher used to quip.
Dr Odote lecturers at the University of Nairobi.