Titanium Mining in Kenya: The Unresolved Questions

Titanium Mining in Kenya: The Unresolved Questions

Press Release - National Council for NGOs

10th July 2003

The National Council of NGOs is the umbrella body representing all non- governmental organizations registered under the Non-governmental Organizations Coordination Act of 1990.

The Council has taken note of the media reports to the effect that the government, through the Ministry of Environment, Natural Resources and Wildlife, has finally decided to grant the mining licence to M/s Tiomin Resources Inc. The sudden decision to issue the licence, without conclusively responding to the objections lodged by the Council and others, is inconsistent with the proclaimed policy of the new government to consult widely before decisions on major governance issues are made.

From the outset, the Council would like to reiterate that it supports the principle of sustainable development, that is to say, development that meets the needs of today without compromising the ability of future generations to satisfy their needs. The Council is therefore not against exploitation of Kenya's natural resources. Its concern is that such development should be environmentally sound and equitable, and truly benefit the people. For a country trying to emerge from a depressed economy, exploitation of resources such as titanium is one of the engines for the projected growth. However, this should not be attained in a manner that imperils citizens' lives, livelihoods and rights. It should also be done in a manner that ensures the greatest economic value possible for the country. Is KSh. 400 million per year necessarily the best value?

In this regard, the Council appreciates that one of the sticking issues that it has sought to address, namely the question of adequate compensation, has received attention. While the latest offer of KSh. 80,000 per acre is a marked improvement on the earlier offer of KSh. 9,000 per acre, we would like to point out that the issue of compensation was just one among many. Nevertheless the process attending decision making in this whole affair poses some questions of process and detail that still beg for attention.

The first is the inconclusive consultation process. The grant of the licence has come at a time when the government had embraced the civil society as a valuable partner in development in our country. Besides, both the Mining Act and the Environmental Management and Coordination Act require public participation to attend decision making on issues of this nature. Civil society had embarked on consultations with the Ministry as far back as the year 2000, when two roundtable discussions were held. More recently, two meetings were hosted by the Ministry on April 10 and 29, 2003 with senior officials of the Ministry. As one of the results of this working relationship, the civil society supported a government fact-finding mission to South Africa and agreed in principle to host joint public fora in Nairobi and Mombasa to discuss the titanium mining issue. We had hoped that this positive spirit would be sustained to the final conclusion of the matter.

In the course of this working relationship, and in appreciation of the need for the Kenyan people to discuss matters that affect their lives, the Ministry, through the office of the Commissioner of Mines and Geology, published several public notices with the final notice appearing in the Daily Nation of February 5, 2003 requiring any person with any objections to the grant of a special mining lease to M/s Tiomin Resources Inc. to file them with the Ministry within a period of 90 days. On the May 2, 2003, the Council submitted its objections to the Ministry receipt of which was acknowledged by a receiving stamp. The text of this objection was further made public through its publication in the Sunday Nation of May 18, 2003. The Council is aware that a number of its constituent members filed several objections as well.

It is regrettable that ever since the submission, no response has been received from the government with regard to the issues that were raised in the objections. We submit that Regulation 33 of the Mining Regulations, under which the notice was published, does not contemplate a mere formality of calling for objections without responding to the issues raised. Seen from the standpoint of the rules of natural justice, the said regulation calls for a proper hearing of all parties concerned prior to decision-making.

Furthermore, for public participation of citizens to be useful and meaningful, it must be effective participation. This can only happen if citizens and organisations are provided with all the necessary information to enable them to meaningfully engage in any consultations. This is because information raises the level of debate and influences opinion that might otherwise be compromised by mistrust and bias. We note that on a number of issues, such as the quantity, composition and quality of minerals available in the area, the only information available has been provided by M/s Tiomin Resources Inc. without independent verification by the government. Can we trust Tiomin Resources Inc. to take care of the interests of Kenyans? The government needs to practice transparency and release all the information that the public requires to gauge the fairness and prudence of this process.

Additionally, it was expected that the report of the fact-finding mission to South Africa would be released to the public. In the same vein, if there were negotiations between the government and M/s Tiomin Resources Inc. on the one hand and the local farmers on the other, the terms of these negotiations and the full agreements arrived at should have been made known to all stakeholders and the wider public.

The natural resources of Kenya belong to the people of Kenya. The government merely holds them in trust for the people. Indeed, this is the letter and the spirit of the draft Constitution of Kenya that is undergoing debate. For this reason, the government must have a clear position on how it intends to deal with Kenya's vast natural resources. This must certainly mean re-looking at the country's policies and laws on natural resources. Gladly, the government appreciates this fact. In the budget speech, for instance, the government informed Parliament that it intended to draft Kenya's mining policy and come up with appropriate legislation. The review of the Mining Act, a colonial relic, is long overdue. This is also recognized in Kenya's Poverty Reduction Strategy Paper and the recently released Economic Recovery Strategy for Wealth and Employment Creation.

Secondly, while appreciating the potential benefits that may accrue from this venture, we must remember that African history is replete with instances where the discovery and exploitation of mineral resources has not been a blessing but a terrible curse that has haunted its citizenry. Most of the civil wars in African countries are waged over natural resources. The examples of the Democratic Republic of Congo, Angola, Liberia, Sierra Leone, and the Niger Delta in Nigeria immediately come to mind. There is also the prevalent phenomenon of poverty amidst plenty in the same countries, which is evidenced by amongst others, the struggles of the Ogoni people in the Niger Delta. Generally, the most-endowed countries are the most unstable and poor, due to mismanagement of such resources and corruption.

Thirdly, there are still a number of unanswered questions, which there is still ample opportunity to resolve prior to the actual grant of a licence and commencement of mining operations. Indeed, some of these constitute conditions that should be on the mining licence. The main ones are as follows

• Guarantees on the exploitation of underground water, which, even under current circumstances, is reflected in the Study on the National Water Master Plan to be dangerously low.
• The Environmental Impact Assessment (EIA) and the Environmental Management Plan (EMP) have been submitted. The Action Plan should also be submitted, and publicly reviewed, prior to the issuance of the EIA licence.
• The EIA and EMP are still the subject of a pending lawsuit, with mandatory orders still in force against the Director-General of the National Environmental Management Authority (NEMA).
• There have still been no attempts to consider alternative loading site to Shimoni and/or ways of mitigating the possible negative environmental impact on the Kisite/Mpunguti Marine Parks. The Council had proposed access through Kilindini by rail.
• Local value addition, which would create more jobs, technology transfers, and more national income, has also not been conclusively discussed. This is at the heart of maximizing economic value to the country.
• There is need to strike a balance between benefits to the national economy and what goes into the local economy. The government intends to revive the Ramisi Sugar factory. Part of the land in which the mineral is found actually belongs to this company. Additionally, official records such as the Kwale District Development Plan show that this area is the bread-basket of Kwale district. The government needs to balance these interests as part of the process of settling the Tiomin issue.
• There are still continuing and yet to be addressed concerns over radioactivity in the area. Clear explanation of mitigating measures, strict licensing conditions and monitoring frameworks would allay these fears.
• It is still not clear where the affected people will be re-settled, with controversy already emerging over possible re-settlement in Kilifi. This begs the question whether a Re-settlement Action Plan (RAP) has been developed.
• The mining of titanium is not governed by the Mining Act alone. The Environmental Management and Coordination Act is the overall legislation in environmental matters and must therefore at all times be complied with. Did the National Environment Council (NEC) and the NEMA deliberate on this matter before the Ministry issued the statement of intent? Have all the requirements under that law been met?

The Council contends that the foregoing issues must not be seen in isolation but as important ingredients to the success of any mining venture in Kenya.

The Council strongly believes that the manner in which the titanium mining issue has been managed raises many questions, not just on the mining of titanium, but how the country wants to exploit other minerals, both existing and under exploration. Yet it is not too late in the day to do take corrective measures. The Council will continue to monitor the situation, in concert with its members, and to call upon the government to manage the issue accountably.

In the meantime, the Council calls upon the government to do the following:

• Observe all the laws that govern mining and provide safeguards to a clean and healthy environment for the people of Kwale and Kenyans generally.
• Open up the flow of information and engage in structured consultations with interested parties in order to conform to the public participation requirements of both the Mining Act and the Environmental Management and Coordination Act.
• Develop the conditions for licensing in a more participatory and transparent manner in order to provide stakeholders with sufficient information for continuing public participation by way of monitoring compliance with the laws of Kenya.
• Expeditiously establish the process of reviewing Kenya's mining policy in order to provide clear direction on similar mineral exploitation ventures, which should include stakeholder participation and competitive determination of value, amongst other principles.
• Take all necessary measures to safeguard the rights of affected citizens, beyond the payment of compensation, such as re-settlement, investment education, monitoring environmental degradation and enforcing compliance with the licence conditions.

Gichira Kibara
Chairman
The National Council of Non-governmental Organizations