Firms that are exploring or extracting minerals in arid and semi-arid lands (ASALs), covering about 80 per cent of Kenya, have to balance their own interests with those of the residents as the land is communally owned.
The 2010 Constitution requires community land law to be put in place within five years; the deadline is in five months.
Kenya’s delay in legislating communal land rights could result in clashes over minerals between investors and residents of arid and semi-arid areas.
The advocacy group Friends of Lake Turkana says lack of legislation on how mineral exploration should blend with land reforms has already led to a clash of interest between investors and communities and is likely to ignite tensions.
The Senate’s Community Land Bill is set to go for its third reading, and a similar document drafted by the Ministry of Lands is yet to get Cabinet approval and go to parliament for debate.
Firms that are exploring or extracting minerals in arid and semi-arid lands (ASALs), covering about 80 per cent of Kenya, have to balance their own interests with those of the residents as the land is communally owned.
The Land Development and Governance Institute (LDGI) says disputes over mineral rights could hamper Kenya’s quest to develop its mining industry due to the slow implementation of land and natural resources reforms.
The 2010 Constitution requires community land law to be put in place within five years; the deadline is in five months.
“The issue is whether this is by accident or a strategy to derail and slow down the process of formulating community land law,” said LDGI chairman Ibrahim Mwathane.
He said the government needs to manage community expectations of how they can benefit from the mining industry. Tullow Oil has discovered 600 million barrels of oil in north-western Kenya, and large parts of the country’s ASALs have potential for gold, iron ore and manganese.
Ujamaa Centre, which advocates a non-conflict approach to dealing with land issues, said promoting community rights is key to peaceful co-existence, improving livelihoods and promoting development.
“The extractive sector is a new frontier for conflict, if communities are excluded from decision making and management of resources on land they have always considered theirs,” said Ujamaa’s development consultant Eunice Adhiambo.
Prospects for minerals in counties like Turkana and Baringo make it vital for Kenya to have a comprehensive communal land law.
“Minerals are being discovered on land where people live, yet communal lands laws are not in place. The fear of exploitation and being driven off their land could harden the attitudes of people to mining,” said Mr Mwathane.
The Mining Bill for prospecting and extracting of iron ore with other minerals has already been approved by the National Assembly, and is set to go for the third reading in the Senate.
The draft Petroleum Bill, which covers exploration and commercial production of crude oil and natural gas, is yet to be approved by Kenya’s Cabinet in order to be forwarded to parliament for debate and legislation.
It is expected that once the Mining, Petroleum and Community Land Bills are passed, the extractives sector will be more attractive to investors.
Ikal Angelei, the director of Friends of Lake Turkana, said the challenge of not having a community land law is exacerbated by the Trust Land Act contradicting the provisions of the 2010 Constitution.
“The rushed effort to pass other Bills influencing community rights before the Community Land Bill has far-reaching effects on how investors, communities and government deal with mineral rights,” she said.
Oil exploration has an effect on other facets of community life like grazing practices, availability or use of water, and prevailing social and cultural practices.
“Investors should be aware of local dispute resolution mechanisms used over the ages by residents around the exploration areas, and capitalise on using them before resorting to other forms of resolution,’’ said Ms Angelei.
She said disputes related to land boundaries in north-western Kenya are usually linked to sharing resources such as land, water, and pasture.
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