KEY FINDINGS AND

RECOMMENDATIONS OF THE
SESA FOR THE MINING SECTOR
Joint Workshop on Environmental
Governance in the Mining Sector

Putting Policies into Practice

15th May, 2018

 Introduction
Strategic Environmental and Social Assessment (SESA)
for the Mining Sector in Kenya
Policy Owner: Ministry of Mining (Fully funded under
the Environmental Governance Programme)
SEA Experts: Habitat Planners
Purpose of the SESA:-
To assess ways in which environmental administration
and governance in the mining sector as was recently
amended through the Mining and Minerals Policy
2016, Mining Act 2016 and associated mining
regulations is likely to affect the environment and
social life including human rights at both the national
and community levels – enhance sustainability to
development policies.
 Introduction Cont..
• Geographic scope – whole of Kenya
• Counties: Nairobi (national seat for
governance of the mining sector), Kwale
and Kitui Counties (major mining areas) -
field visits, any studies undertaken.
• The final SESA report was submitted to
NEMA on the 6th of December, 2017.
• Approval for the SESA was issued on the
30th January, 2018
 SESA Objectives
• The specific objectives for the SESA were to:-
1. Determine whether the governance
frameworks in the sector have effectively
considered the national environmental
obligations,
2. Establish whether the governance frameworks
in the sector have effectively considered the
national obligations for protection of human
rights, and
3. Determine whether there is adequate and
effective capacity for ensuring environmental
sustainability and protection of human rights
in the mining sector.
 Key Findings in the Mining Sector
1. Policy Analysis
Environment
The integration of obligations in 78 environmental
frameworks in the 18 governance frameworks for
the mining sector indicated that majority of the
obligations in national policies were either well and
fully, or moderately integrated with only 4 out of 22
policies (19%) not integrated.
The non-integrated policies included;
- the National Water Policy (2012 Draft),
- National Wildlife Conservation and Management
Policy, 2012,
- National Policy for Disaster Management, 2009 and
- the National HIV and Aids Policy, 2009.
 Key Findings
• The pattern was similar for the legal frameworks with only 4
out of 25 legal frameworks considered as not integrated,
namely;
- the HIV and AIDS Prevention and Control Act No. 14 of 2006,
- Radiation Protection Act CAP 243 (Revision 2012),
- National Cohesion and Integration Act 2011 (Amendment
2012) and
- the County Governments Disaster Management Bill, 2014.

• The key national strategy which was poorly integrated is the

- National Climate Change Response Strategy (NCCRS, 2010)
including the
- National Climate Change Action Plan 2013-2017.
 Key Findings
• The Policy analysis identified the following potential
negative environmental impacts due to the
environmental obligations which are not fully integrated
in the mining sector governance framework:-
a) Overuse of natural resources – especially water
resources
b) Mining related disasters - Explosions, fires, shaft
collapses and cave-ins, mine suffocation, mine flooding
and so on
c) Risk of climate change disasters such as floods,
landslides and disease epidemics
d) Deforestation by mining activities
e) Loss and degradation of critical ecosystems and loss of
species
f) Wetland loss and degradation
g) Introduction of alien invasive species
 Key Findings
h) Contamination of streams, rivers, lakes,
wetlands and groundwater resources
i) Deterioration of water quality
j) Risk of mining related conflicts
k) Public safety and health problems
l) Risk of radiation exposure
m) Increased spread of HIV/AIDS
n) Weak CSR implementation
o) Weak mitigation and adaptation for climate
change in mining areas
 Key Findings
Human Rights
• The Policy analysis on the integration of obligations in 12
human right frameworks in the mining sector, as recently
amended through the Mining and Minerals Policy 2016,
Mining Act 2016 and associated mining regulations,
identified the following potential risks of human rights
violation due to the human rights obligations which are
not fully integrated in the mining sector.

1. Consumer rights
2. Right to fair administrative action
3. Right to access of public information
4. Right to security and peace
5. Right to proper physical and mental health
6. Child labour
 Key Findings
2. Mining EIAs
• The quality of mining project EIAs in Kenya was
evaluated according to the guidelines in the quality
guidebook for evaluating mining project EIAs by the
Environmental Law Alliance Worldwide 2010.
• The findings showed that the quality of reports was
weak in terms of comprehensive consideration of all
- the phases of mining projects,
- adequacy of environmental regulatory framework,
- consideration of potential biological impacts,
- human rights considerations and
- EIA consultation meetings.
 Key Findings
3. Institutional Capacity Analysis
• A wide range of institutions are involved in the interface
between, mining activities, environment and human rights.
• An evaluation of the capacity status at the National Environment
Management Authority (NEMA) and the Directorate of
Occupational Safety and Health Services (DOSHS) showed that
significant efforts have been made to ensure harmony in the
interface.
• The institutional capacity analysis showed adequate systemic
capacity especially in terms of;
• a) grievance resolution for mining EIAs and issuance of an EIA
licenses,
• B) Insufficient resources such as : - inadequate financial
resources and essential instruments like vehicles and ICT,
inadequate staff for timely inspection of mining project sites
including the compliance monitoring of recommended EMP in
mining EIAs.
 Key Findings
4. Stakeholder Consultations
• The governance gap issues raised by the stakeholders
and not identified in the PPP analysis were:-
a) inadequate capacity for mining governance agencies,
b) lack of proper coordination for agencies involved in
mining sector governance,
c) lack of a national framework for compensation and
resettlement of displaced communities,
d) inadequate participation of county governments in the
mining sector governance,
e) ineffective Mining Liaison Committees,
f) non-decommissioning of mines, and
g) lack of proper mine inspection mechanisms.
Recommendations from the Policy
Analysis
a) Mining sector governance framework :
The following recommendations were made in
order to strengthen the mining sector
governance framework and in turn
effectively deal with potential negative
environmental and human right impacts:- i.e.

i. Review of mining regulations

ii. Developing additional mining regulations
iii. Developing mining guidelines
Recommendations from the Policy
Analysis
i. Review of Mining Act and Regulations
Review of the Mining Act No. 2 of 2016 and
related regulations to address sector
governance weaknesses with regard to
• potential risk of water pollution,
• wildlife conservation impacts,
• mining related conflicts and
• weak integration of climate change
mitigation and adaptation should be
undertaken
 Recommendations from the
Policy Analysis
ii. Developing Additional Mining Regulations
- Environmental pollution and degradation in mining areas : -
Environmental rehabilitation and restoration regulations for
decommissioned quarries and mines in collaboration with NEMA
- Risk of radiation exposure : - Mining Radiation Safety Regulations
and Guidelines in collaboration with the Radiation Protection
Board, DOSHS
- Public disclosure of royalties paid by mining companies: - Mining
(Proactive Public disclosure and Access to Information)
Regulations.

iii. Developing Mining Guidelines

- Unsustainable mining and over consumption of resources: -
Guidelines for rain water harvesting and conservation in mining
areas
- Introduction of alien invasive species in Mining areas: - Guidelines
for prevention of alien invasive species in mining areas in
collaboration with NEMA
Stakeholder Recommendations
Most of the stakeholder recommendations were in
agreement with those from the Policy analysis. However,
the following unique recommendations were advanced
by the stakeholders on various mining issues in the
country.

a) Management of mineral resources

- Develop guidelines for valuation of land properties where
minerals are discovered.
- Re-classify mineral in schedule of the Mining Act 2016 into
those to be administered by the national and county
governments and gazette the classifications.
- The implementation of the mining act should be done in
partnership with County governments.
- Specify the functions of county governments in managing
minerals under their administration.
Stakeholder Recommendation Cont’...

- The national government should base the main

administrative institutions for mining at the
County level even if mining is a national
government function.
- Develop regulations to create mining
institutional structures at county level.
- Support the County Environmental Committees
(CECs) to incorporate a cross-sectoral
integration sub-committee including mining
sector.
- Establish county leadership forum to develop a
common approach for governance in mining
sector.
 Stakeholder Recommendation Cont’...

- Community liaison Committees for mining

should be enhanced and supported with
budgetary allocations from the National
Treasury.
- Establish an inter-agency coordination
mechanism at national level to deal with
environmental, social, economic and
human rights issues in the mining sector.
Stakeholder Recommendations Cont’..
b) Environmental pollution and degradation
• - Strengthen the capacity of government lead agencies to
undertake more effective inspections of mining activities.
• - Develop additional regulations and guidelines for the
governance of artisanal mining.

c) Social Environment
• - Develop Occupational Safety and Health Regulations and
guidelines for the mining sector.
• - Develop guidelines on the formation and operationalisation of
the Liaison Committees and incorporate host communities in
those committees.
• - Empower local communities to effectively participate in the
mining sector.
• - Establish and gazette compensation and resettlement
regulations at the local level as provided under Article 153(8) of
the Mining Act 2016.
• - Strengthen the capacities of mining governance implementing
agencies.
 Stakeholder Recommendations Cont’..

d) Human Rights
• - Review the Mining (Community
Development Agreement) Regulations, 2017
to adequately consider the Bill of Rights in
the Constitution of Kenya.

• - Review the Mining (Community

Development Agreement) Regulations, 2017
to adequately consider the African Charter of
Human and People’s Rights.
 Recommendations on institutional
capacity
• Given the important oversight role played by these
institutions in the mining sector especially in regards
to protection of the environment and human rights,
its important to enhance their governance capacity
and make them more effective in their mandates.

• This needs to be done by;

i) allocating adequate financial resources and essential
facilities like vehicles and ICT,
ii) training and exposure of DOSHS technical staff on
OSH issues associated with the mining sector,
iii) employing adequate skilled staff and create suitable
incentives for retainance purposes, and,
iv) strengthening NEMA’s emergency response unit.
 Recommendations on inter-agency
coordination
• It is important to ensure that the Mining Sector, through
regulations, guidelines or other policy and administrative
actions, continues to mainstream critical human rights
and environmental obligations in order to ensure that
these obligations remain apparent to all actors in the
mining sector.
• Whereas legal provisions are in place that set extensive
human rights and environment prescriptions, their
implementation for the mining sector will depend on the
presence of a properly designed and resourced Inter-
agency coordination framework.
• This coordination framework is critical to enhance
collaborative action amongst public agencies, and to
provide support that maybe required by mining industry
actors in achieving compliance with human rights and
environmental obligations.
• For purposes of the mining sector therefore, it is
recommended that a Human Rights
Mainstreaming and Inter-agency Coordination
Strategy should be developed.
• This strategy will map out all the key concerns
arising from this SESA report, and clearly
demarcate the responsible institutions for
implementing or having oversight over
implementation; setting critical milestones for
SESA implementation; and putting in place
systems to monitor progress in ensuring the
mining sector is compliant with human rights
and environmental obligations.
Recommendation for Resettlement Policy
Framework (RPF)
• The granting of a mineral right, such as a mining
permit, may in certain instances result in the
displacement of people as a result of a proposed
mineral operation. This displacement will often
happen because the mineral operation is
incompatible with the continued settlement of
the people in that location. This displacement
results in involuntary resettlement of the
persons affected by the mineral operations, and
is disruptive to the economic wellbeing, social
and cultural values of the displaced persons.
• For this reason, implementation of mineral operations
that result in displacement and involuntary
resettlement of people should be subjected to a
National Resettlement Policy for the Mining Sector.
Section 153(8) of the 2016 Mining Act anticipates the
need for implementation of a national safeguards
system to protect people that are involuntarily
resettled by mineral operations.
• The Mining Act requires the Cabinet Secretary, in
consultation with the National Land Commission, to
take measures to ensure that communities that prefer
to be compensated by way of resettlement as a result
of being displaced by mineral operations are settled
on suitable alternative land, with due regard to their
economic wellbeing, social and cultural values.
• The MoM should formulate a clear RFP to deal with
compensation and resettlement of those displaced by
mining operations should be guided by the following
frameworks;
- Chapter 5 of the Constitution of Kenya, 2010
- National Land Policy, 2009
- Land Act, 2012
- Community Land Act, 2016 (GOK, 2016a).

These policy:
- Environmental Management and Coordination Act
Cap 387
- International safeguard standards such including the
WB and AfDB.
 Recommendations on implementation of
mining EIAs
• The following are recommended with regard to the
implementation of mining project EIAs.

• NEMA should tighten the rules considered in the approval of ToRs

for mining project EIAs to ensure the following:-
a) The inclusion of a mining engineer or geologist in the EIA team
b) Comprehensive consideration of all the phases of mining
projects,
c) Adequacy of the environmental regulatory framework for the
EIAs
d) Adequate consideration of potential biological impacts
e) Adequate consideration of human right issues, Adequate
consideration for mining related climate change
f) Convincing stakeholder engagement plans especially with regard
to the number and locations for consultation meetings,
g) Adequate strategies for cost benefit analysis
 WAY FORWARD
• As part of implementation of the 2018 EGP
workplan, EGP Technical Committee (PTC)
met and reviewed the SESA
recommendations and identified two key
priority areas. These were:
1. Review of the Mining Act 2016 for better
integration of environmental considerations
2. Development of an Inter-Agency
Coordination Framework