DPP's office queries legality of Mandera's quarrying ban

The Office of the Director of Public Prosecution has poked holes in the law used by national government administrators to bar quarrying in Mandera County.

In a letter dated November 28, 2018 and written to Mandera County Commissioner Kuswa Olaka, the prosecution complains of ineffective orders that led to closure of quarrying in the county.

Mr Allen Mulama, a senior prosecution counsel in Mandera informed the county commissioner of the non-existence of law that would lead to a successful prosecution of quarry miners.

“This office has noted that since issuance of orders stopping quarrying in Mandera, a number of individuals have been prosecuted but set free or fines paid.

"We have cases of repeat offenders and this has led to abuse of legal process,” said Mr Mulama in his letter.

Deal with quarry owners

According to the counsel, the county commissioner’s office has to deal with the quarry owners and not the workers in effecting the orders verbally issued in May by Mr Olaka.

Mr Olaka argued then that the closure was due to increased attacks in the quarries after four miners were killed in suspected terror attack at a Shimbir Fatuma quarry.

Mr Mulama in his letter, stated that apart from enjoying the prosecutorial powers, the ODPP is mandated with ensuring administration of justice.

“My office is mandated to oversee prevention and or avoid abuse of the legal process which is not the case here,” reads the letter.

The prosecutor wants the county commissioner to find a law under which the quarry owners can be held responsible for the continued “illegal” quarrying activities.

“It is my considered view that if the orders issued by your office are to be implemented to the letter, then we need to hold the quarry owners accountable for quarrying activities” he said.

Valid licence

According to National Environment Management Authority (Nema), quarry owners can only be prosecuted when operating without a valid licence.

“It is impossible to handle the Mandera quarry issues in courts because all the owners have valid licences and we have no law under which the minors or workers can be prosecuted,” said a local Nema official who requested anonymity as he is not allowed to speak for the agency.

Efforts by the Mandera County Commissioner to get all quarry licences from Nema on Monday hit a snag after an official said the licences cannot be released to anyone without due process.

“Nema cannot give licences to any other person or office just like that but can be accessed upon payment of Sh200 by any interested party just to peruse through the file,” the official said.

The closure of quarrying has put politicians in Mandera and the State officials at loggerheads as the county commissioner maintained the quarries will remain closed until security improves.

Mandera Governor Ali Roba has maintained that the ban on quarrying destabilises the local economy and is affecting construction industry.

Lack of evidence

At least 100 quarry workers have been arrested and prosecuted at Mandera Law Courts since May.

Some were fined Sh60,000 or six-month imprisonment while others have been set free for lack of evidence.

Mr Olaka in the latest letter is seeking Nema's aid in effecting the quarrying ban, which the political class locally has since termed illegal.