Business Daily
Date: 10.11.2014
Page 14
Article size: 251 cm2
ColumnCM: 55.77
AVE: 105977.77
Stop multiplicity of laws in mining sector
COLLINS ODOTE
EXTRACTIVES
A few days ago, theNational Assem­
bly passed a new Mining law to
replace the old and outdated
Mining Act of 1940. This followed wide
consensus within the country that the ex­
isting 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
thatlawwas followed by reports of con­
of laws. In the natural resource sector, at cussions started much earlier is yet to
some pointthere were over seventy seven see the light of day. The link between
statutes dealing with various aspects of policies and laws in this country requires
the environment.
reconsideration. In several sectors, be it
The same was true of land laws. It is environment, wildlife and now mining
fortius reason thatthe Constitution and one sees a disturbing pattern where the
the National Land Policy called for con­ reforms to both law and policy starts at
solidation of the various statutes govern­ the same time but the law gets finalize
ing land. This shouldbe the guiding man­ while the policy stalls.
trafortheextractivesectortoo. While it
The end result is some decisions
cerns from the Senate that the law had
is important for the country to address which are policy in nature end up being
not been submitted to them yet it was the different issues ranging from ben­ discussed and made as part of legislative
a law that concerned counties. This got efit sharing, local content to sovereign options when they better dealt with at
me thinking about the current legislative wealth, we should do so without legisla­ the policy level. In the end the country
process in the extractive sector.
tive overload.
then gets a false focus on the law as the
From last year, there has been height­
Amultiplicity of institutions can only solution to all its problems.
ened action within the legislative front result in contusion, rivalry and ineffective
Unless we do so we will always com­
to put in place a modern and responsive regulation of the sector. It is also a poten­ plaint about the inability of the law to
regulatory framework for the sector. As tial avenueforrentseekingbythe differ­ solve the problem we set out for it lead­
part of this process many Bills have been ent agencies. A related problem is the ing to calls for amendments within few
draftedfocusingon various aspects of oil, manner in which national government months of enactment. Some problems
gas and minerals in Kenya. These include is developing the legislation. There are require policy solutions, other require
a new Energy Bill, The Petroleum (Explo­ two ministries or Cabinet departments administrative action while others are
ration and Production) Bill, The Sover­ responsible directly forthe extractive in­ about common sense and human rela­
eign Wealth Fund Bill, Natural Resources dustry. These are the ministries of Mining tions. Knowingthe differences and using
(Benefit Sharing) Bill, local content legis­ and that of Energy and Petroleum.
the right tool for the different category
lation amongst several others.
The two are developing legislation is necessary for there to be successful
At first look this is commendable ef­ from the standpoint that mining and regulation. It is, therefore necessary
forts in trying to address the country's energy ad petroleum are distinct and for the country to reflect on its efforts
weak legislative base. It is the more im­ not interrelated. This is dangerous way to develop legislation for the sector and
portant if it is looked at from the stand­ to proceed. It wouldbe more helpful if the ensure that we do not end up killing a
point that as part of the efforts to ensure respective Cabinet secretaries promoted mosquito with ahammer, as my former
that extractive resources become a bless­ greater collaboration in legislative enact­ teacher used to quip.
ing and not a curse for the country, robust ment Thirdly, the national government Dr Odote lecturers at the University
legal, policy and institutional frameworks shouldencourageharmonyin its legisla­ ofNairobi
are essential. However, on closer reflec­ tive proposals. It does not make sense to
tion, there is a danger that the country have different proposals on the same is­
needs to be aware of.
sue in separate pieces of legislation.
Fourth, while a Mining Bill has been
mony. One of the mechanisms for pro­ passed and awaits presidential assent,
motingharmonyis to avoid proliferation the Mining Policy that was whose dis­
First, there is need for legislative har­
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