Implementation the answer not new regulations

A common blind spot in good governance conversation is the belief that law reform is a precondition in achieving successful reform. Priority and resources are only placed on the legislative development process.

The end of the legislative process is marked as a key success and scarce attention paid to implementation.

Inadequate resourcing of the implementation stalls the development of regulations and the implementation of the legislation rests largely with the line ministries.

A challenge as the laws in some instances seek to curtail the powers of the same ministries now tasked with implementation. In illustration, the Mining Bill 2016 was heralded as offering an opportunity for Kenya to revive its mining industry and support the sectors contribution to GDP. In addition to reforming an old law to conform with the new constitution, the law sought to address some governance gaps.

In the transition from the Kibaki presidency several mining licenses were issued. Subsequently upon appointment incoming minister took the unprecedented step of cancelling these licences.

The cancellation of these licences left the country exposed to suits in foreign jurisdictions which cost significant funds to defend against. The aggrieved parties in some instances sought sums way above the current levels of contribution of mining to the country. In one case filed cortec mining claimed $2 billion from the government for the cancellation of its licence.

The above influenced the development of the mining law and moreso the licensing process. The Act set up the following bodies; a National mining corporation, Mineral rights board, directorate of geological survey, directorate of mines and a representative at the county level. I will focus on the Mineral rights board.

A mineral rights board was set up to act as buckstop with its role including advising the Cabinet Secretary on the: grant, rejection, retention, renewal, suspension, revocation, variation, assignment, trading, tendering, or transfer of Mineral Rights Agreements.

However with no budget it is largely a moribund body with little teeth to influence developments. An additional challenge is the resourcing of the body. An additional challenge is the lack of a feedback mechanism for the ministry to provide some accountability on its decisions to the board. It is therefore concerning to note that post the setup of an elaborate framework to manage the sector several challenges remain.

The much hyped online cadastre system for receiving and processing applications is largely existent in name with shadowy characters still in charge of the licensing at the back end of the system. Overall majority of the country is licensed for mining yet little activity is ongoing.

A question of hoarded licenses? A recentralisation of the licensing process has resulted in a status quo approach to licensing with the ministries corridors becoming the avenue as opposed to the expensively set up cadastre system.

A further key aspect the law sought to address was the issue of shared prosperity and even included a revenue share ratio of the royalties for mining to go both to the county and the community. Two full years later the questions arise as to whether the law as envisaged is achieving it stated aims and goals. While it may be early to judge the laws, we can unequivocally speak of failed implementation.