BY MAORE ITHULA It is 10 a.m. and the searing heat of Tana River County is already taking its toll on baby Amina who is strapped on the back of her mother, Asha. Amina cries uncomfortably and to mollify her, Asha shifts the toddler to the front so that the infant can continue suckling as we trek. Mother and daughter are struggling to catch up because they are pushing a donkey that is laden with all manner of household goods. As head of his small family, Abdul Hassam is driving his livestock within a huge herd that belongs to many other families. Although the wet season is at its peak, Hassam and the whole pastoralist village is on the move. Usually, nomadism never happens anywhere in the world during a rainy season. Yet, like the proverbial troubled mole that crossed the road during the day, several pastoralist villages in the Bangale Township of Tana River County are on the move when they should be sitting pretty and watching their animals grow fat. So, what is wrong? Last month the Nairobi Law Monthly caught up with the shifting families to establish what their problem is. The results were unsettling. The poor families were running away from environmental degradation caused to their villages and pastures by illegal mining of gypsum in Bangale area. Hassam told us: “These people started these activities a few years ago. At first it was the noise that their machines made that was a nuisance. Then the air started becoming stuffy and soon we and our animals began falling ill. We moved away and others came right behind us, again we moved further away. Now our former village is one gigantic pit; there no pastures and they are still coming every day with bigger machines and always in larger numbers than the previous groups. “We have reported this to local and national government officers but nothing is being done about it. So we had to move before it is too late,” he says. “The mining companies do not give us anything, not even water. They have not built any schools or health care facilities in the area. They also do not build any roads. Actually their machines do not need a road. And because we do not know who to turn to, we just move on and let them to continue with their work.” Like most parts of coastal region, Tana River County is blessed with a sizeable number of mineral deposits. The most economically viable mines being those of gypsum veins. But this vast county is also an area that is among the most marginalised in the country. Consequently, people of Tana River County are some of the most vulnerable in this society. It is apparent that this marginalisation has entrenched psycho-social vulnerability among these people which has, in turn, exposed the entire county to illegal mining companies who are now exploiting the vast gypsum deposits irresponsibly, thus defiling the environment with unbridled impunity. No wonder the miners do not give back to the communities a cent of the obscene profits they make. Based on the legal doctrine of laches, therefore, the people of Tana River County are simply sitting on their rights! The gypsum mines are in Bangale, Tula, Madogo, Charitende and Nanighi of Bura Sub County. Others are Assa/Kone and Kurawa of Garsen Sub County. While mining business is very vibrant here, the county government laments that neither residents of these areas nor the Tana River County Government benefit from this activity. In fact, the mining companies are being accused doing their business illegally. Sophia Oblia Wedo, the County Executive for Environment, Wildlife and Natural Resources, observes that because the Mining ministry is not a devolved function, the National Government has failed to enforce the mining laws in the county. She says the State has allowed many companies to exploit gypsum without licence. Audit conducted by her department last year, she reveals, established that the mining companies are operating in the area without licenses. Moreover, Sophia adds, the companies give back nothing to the communities neighbouring the mines, which ought to happen as Corporate Social Responsibility. Further, the miners also conduct their business without a thought for the environment, leaving pollution and destruction in their trail. According to the Kenya Mining Cadastre Map (Mines and Geology) there are a total of 26 gypsum mining companies operating in Tana River County. “Majority of them are in Bura Constituency at Bangale, Tula, and Madogo areas. Others are in Nanighi/Bura, and Garsen Constituency at Assa/Kone and Kurawa areas,” the head of the department points out. Lame duck She says when Najib Balala, Cabinet Secretary for Mining, cancelled mining licenses for many companies in the country, all of those operating in Tana River County were affected. Yet all of them are still in operation, a year later. Emboldened by the inertia by the National Government, many more have moved in. But since mining is not a devolved function, the Tana River County Government is a lame duck. It cannot do anything about the illegal activities. Siamito Sekeyian, the Tana River County Attorney, says that although the people and the devolved unit are being exploited by the illegal mining activities, nothing can be done legally because the National Assembly and the Senate are yet to come up with a National Mining Policy. However, he points out that, the mining companies should follow the existing laws which include the guidelines on environmental protection and restitution after mining as provided by the National Environmental Management Authority (Nema). There are also various permits that they should get after meeting certain criteria set by the Mining ministry through the Mining Act. Sekeyian declares: “Just because the mining policy has not been developed does not mean that the mining companies can do what they want anywhere. This is anarchy. And this is why Mr Balala, the CS for Mining, cancelled their licenses. The police should take action on these people immediately.” There are 13 active companies, while another 13 have applied for prospecting licenses. Land in Tana River County is not planned or adjudicated. The Nairobi Law Monthly has also established that gypsum mining companies are often allocated land for prospection without an accurate site of the allotment. These amorphous allotments have sparked off disputes between competing mining companies often resulting in gunshot sounds being heard in the wilderness. Now Sophia is worried that illegal mining is yet another insecurity time bomb waiting to explode. “Allocation of land for prospecting in Tana River County is always done in Nairobi. But there is no survey map for the county at the Survey of Kenya to help those in the Mining ministry to make these allocations accurately. Oftentimes, these allocations overlap, or some cheeky mining companies expand their territories, thus sparking off disputes. We are afraid that if this is problem is not nipped in the bud, these companies might start recruiting gangs to settle their scores. This could spiral into something uglier in this potentially volatile area,” Sophia says reflectively. “As much as we need investors to commercialise gypsum mining, we must ensure that our people benefit. For example, there must be a clear policy on corporate social responsibility projects. Our people should also be paid royalties. In addition to providing employment, mining companies must give us token projects that neighbouring communities can benefit from.” She says her department is now drawing a blue print on how people of Tana River County will benefit from mining. She is looking forward for partnership arrangements with all mining companies operating in the area. She wants the miners to declare how much gypsum is extracted and the amount of deposits available. On compensation, the department is looking at the acreage of land under prospection with the aim of determining site fees payable to the county, letters of consent for land for prospecting and lease arrangements. For schedules to curb environment degradation, the department wants clear Environmental Impact Assessment to be conducted as stipulated by the law before any activity commences on any site throughout the region. The mining companies, she opines, have ignored this requirement with blatant impunity. “Whereas the constitution is very clear on how mining activities should be conducted, companies in our county seem to have a way of breaking the law with unreserved impunity. The National Government seems unable or unwilling to enforce the law. Lords of corruption in Nairobi are befitting from mineral exploitation in this area while we remain poor. But we are determined to fight to the very logical end of this matter.” On environmental destruction, Sophia says, even without employing Kenya’s Constitution, International law stipulates that every mining activity ought to protect and conserve the environment. She is now engaging the United Nations Environmental Programme to invoke the international statues to ensure that there is complete and comprehensive restoration of mines where gypsum has been extracted in the county. “We have noticed that mining companies simply exploit this natural resource and disappear, leaving the quarries open without rehabilitating the pits,” she says. The minister says whereas small mining companies employ locals as casual labourers, large scale mining is highly mechanised thus locking out unskilled workforce in the area. “Mining activity in Tana River County is rather interesting. The big fish in this industry obviously make more profit than the rest. Yet all large miners do not have any legal documents from the National or County Governments. They also do not employ local people, and they do not carry out any corporate social responsibility activity. On the other hand, a few of the smaller miners have the requisite documents and they employ locals. They are a humble lot.” The law requires that miners get five licenses from various agencies under National Government before commencing such an activity. First are a Prospecting Rights paper and a certificate of Environment Impact Assessment from Nema. With these, one can then apply for a Prospecting License and later a Mining License. The mines are also obliged by law to go through an Annual Environmental Audit every subsequent year. None of these requirements has been met by most big miners in the county, says the minister and whenever she approaches the mining companies to prove that they operate in the area legally, she is often referred to Nairobi where the companies claim to hang their licenses. When NLM toured these mining sites, we were also referred to Nairobi. Interestingly, except the giant Athi River Mining which is the dominant player in the county, the other mining companies have over time closed their offices in Nairobi. Their websites are all also inactive. None could be reached by phone or mail. Their existence is only on the mining sites. On the other hand, Athi River Mining is like a mountain, with nowhere to hide. We visited their offices at Rhino House on Chiromo Road where Ms Lucy Kariuki, the company’s public relations officer, instructed us to send an online request to Mr Pradeep Paunrana, the Managing Director, detailing everything we wanted to know about their gypsum mining activities. We did so and Ms Kariuki confirmed receipt of the mail saying she would get in touch with us ‘in a while’ (sic). As we went to press, she hadn’t.