Kenya's mining sector is undergoing a period of necessary reform. The government is taking steps to address the widespread issue of illegal mining, prioritise safety, and ensure compliance with regulations. This shift towards responsible mining practices is a positive step for the country, but challenges abound.
A complex landscape
It's important to acknowledge that the current situation is partly an aftermath of past decisions. The 2019 moratorium on mining licenses, while intended to improve regulation of the sector, might have inadvertently created opportunities for illegal operations. Also, delays by the Ministry of Mining in designating specific zones for small-scale mining as stipulated by the 2016 Mining Act (Section 13) could have contributed to the burgeoning of unregulated activity.
Furthermore, the slow establishment of artisanal mining committees by both national and county governments, coupled with the lack of clear boundaries for licensed artisanal miners, may have left room for exploitation.
This complexity also highlights the potential impact of corruption in instances where bona fide mineral rights holders face an influx of illegal players in their licensed areas end up finding it difficult to obtain adequate support due to corrupt practices.
An additional challenge facing Kenya's mining sector is the growing influence of foreign entities in established artisanal mining zones. Lax oversight and insufficient enforcement of regulations have enabled undocumented foreign traders and miners to infiltrate these areas.
Often operating without proper licensing, these groups have the financial means to introduce heavy machinery, outcompeting smaller-scale, local operations.
By purchasing minerals directly from artisanal miners, they bypass official channels, leading to a significant loss of revenue that should be collected by the Kenyan government through royalties and taxes. There are also concerns about these foreign actors engaging in smuggling, further undermining the integrity and potential benefits of the sector.
The road ahead
Despite these challenges, the recent actions taken by Kenya point to a clear commitment to tackling illegal mining. The formation of a specialised police unit, crackdown on unlicensed operators, and streamlining of the licensing process are positive developments. Efforts to regulate artisanal mining while prioritising environmental protection will be crucial in ensuring communities benefit from responsible mining practices.
For long-term success, the government needs to address the factors that contributed to the rise of illegal mining. Swift designation of zones for small-scale operations, the establishment of functional artisanal mining committees, and clear demarcation of licensed areas are essential steps. Additionally, tackling corruption within the mining sector is vital to ensure a fair and transparent environment for all stakeholders.
To address the issue of foreign actors in illegal practices, the government should take several decisive actions. First, stricter border controls and the proactive monitoring of artisanal mining zones are necessary to identify and curtail undocumented foreign involvement.
Secondly, robust enforcement of the Mining Act's provisions is crucial to hold both foreign and domestic illegal operators accountable. Third, limiting the activities of foreign entities in artisanal mining areas is worth considering.
Designating market centres where they can establish monitored businesses could help separate them from informal mining sites and improve transparency.
Finally, the government should explore the establishment of mineral trading houses, similar to the model adopted in Tanzania. This would mandate that all foreign buyers, with the exception of established investors registered with the Kenya Investment Authority and the Department of Mining, purchase minerals through these regulated centres and obtain the required export certifications and tax clearances.
Ensuring fairness
The government when tackling illegal mining operations must ensure all enforcement actions, whether by the new police unit or Ministry officials, follow due process and adhere to the law. Orders to close mining activities should be targeted at illegal operations and not impact legitimate mineral rights holders awaiting license renewals.
Importantly, transparency is key. The government should clearly communicate the legal basis for closures and the process for legitimate miners to address any concerns.
The writer is the executive director, the Extractive Insight Centre.
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