MINING ACT KENYA 2016
I got the privilege a few weeks ago to thoroughly comb through 118 pages of the Mining Act. This Act was assented by the President on 6th May 2016. The purpose of the Act is to give effect to Articles 60, 62 (1)(f), 66 (2), 69 and 71 of the Constitution in so far as they apply to minerals; provide for prospecting, mining, processing, refining, treatment, transport and any dealings in minerals …
I know that with the above statement, I have lost a few Millenials don't worry, I will translate. The act will break down, the different dealings of mining and mineral-related issues. From the surveys, extraction, excavation refining transport and sale of minerals. All this will be handled in the act. The act like all others begins with preliminary provisions. This explains the scope of the act and the different vocabulary used in the Act and the meaning as per the usage. For example ‘first come first serve means the policy of considering and approving applications, based on the order of receiving them”.It further explains its jurisdiction. The act does not cater for petroleum or hydrocarbon gases.
Ownership of minerals. Not everyone is eligible to own minerals. An individual has to be of sound mind, is of legal age (18) and has not been declared bankrupt. The government of Kenya owns every mineral in its jurisdiction. Minerals under the sea, on the verge of its borders. In the administration of this act, a Cabinet Secretary(John Munyes) will be put in charge.
The Cs under the recommendation of the Mineral Rights Board upon a gazetted. Anyone who would like to mine should ensure that they have a license. The Cabinet Secretary, on the recommendation Categories of the Mineral Rights Board, may grant, deny or revoke mineral rights. mineral right. A mineral right may be granted in respect of a large scale operation or small scale operation. The following licenses and permits may be granted for a mineral right under this Act to authorize a mineral right holder to engage in large scale operations which shall include — a reconnaissance license; a prospecting license; a retention license; a mining license; or small scale operations, which shall include — a prospecting permit; or a mining permit.
There are will be institutions under the act; National Mining Cooperation which is tasked with the responsibility of protecting and harnessing mineral wealth. The Act established the board whose main role is to advise and give recommendations, in writing, to the Cabinet Secretary on the areas suitable for small scale and artisanal mining and the areas where mining operations may be excluded and restricted. Directorate of Geological survey. Their main function is to carry out geological surveys and research. They are also in charge of;
- Maintenance of Geo-scientific database and information
- Administration of legislation relating to mineral resources development
- Mining and Mining Policy formulation.
County Government- Since all ministries are in Nairobi, including the ministry of Mining. A representative will be needed in each county. In that regard, an office will be established by the CS for Mining and will be the Ministry of Mining representative in the County Government. The office is responsible for granting, renewing and revoking artisanal mining permits, maintaining a register of artisanal miners and maintaining fair-trade. This will ensure an easier day to day running of mining activities in counties where mining activities take place.
Royalties. For all those who don’t understand, A royalty is a payment made by one party (the licensee) to another that owns a particular asset (the licensor), for the right to ongoing use of that asset. Meaning that any company or firm that mines in Kenya have to pay a certain amount in royalties. The royalties are broken down as follows. 70% for the national government, for the 20% County government and 10% for the community where mining is taking place.
The Act expects mining operations to comply with laws on water rights and use the land in accordance with the terms of the permit or license. This is the expectation, It might not be the case but as per Act, this is what should be followed. Finally, the Act provides that any dispute arising as a result of a mineral right issued under the Act may be determined by the Cabinet Secretary, through a mediation or arbitration process as the disputing parties may agree or as stated in an agreement; or through a court of competent jurisdiction as was seen in the case of Cortec Mining Kenya versus the state, Kenya. Just a quick mention, in this case, the state won.