Golden 'Access to Information' space @MiningKE Regulations

The interpretation of the access to information related to minerals rights are a 21 Carat ahead in terms of promoting public participation and engagement. The regulations implementing the 2016 Mining Act (MA2016) according to the Access to Information Act 2016 (AIA2016) as published among others in the mining ministry website are encouraging. The 2010 Constitution of Kenya (CoK2010) article 25 subjects information access to limitations. The regulations are expected to guide both the disclosure of 'administrative' and contract information heretofore not disclosed.

Disclosure of all Mining Agreements

The regulations are therefore another huge hop in the big leap the country has taken in interpreting the CoK2010 after widespread fears that contract and administrative information on mining will not live to the transparency bar set by the new constitution. Kenya has historically under the now repealed Mining Act Chap 306, not disclosed any mining contract agreements creating mining related disputes. The regulations interpreting implementation of disclosure of mining contracts in the ministry website were awaited.  Section 118 of MA2016 requires all contracts entered into according to this act shall be not only public, but accessible.

The regulation states the cabinet secretary shall ensure all mineral rights that are granted are made public in the online mining cadaster within 30 days from the date of grant. Those that were made prior to the MA2016, are still valid and subsisting after coming into force of the MA2016 shall be made public on the same platform within six months.

Access to Administrative information

The regulations provide guidelines for standard, transparent and accountable reporting of what I would call “administrative information”, including of the fiscal terms of the contract by the mineral rights holder. Administrative information is information needed to collectively manage mining rights. While the regulations do not expressly require these reports to be shared with county governments in their original format, access by county governments through online Mining website is equally an improvement. This raises the public expectations on county governments to set up systems to deepen engagement with host communities with information related to mining at their level of government. County governments have had a rough time managing information and administrative demands of mining operations in their jurisdictions. Not all information collected by national government will however be disclosed. Information determined within the limitations of article 25 will still not be disclosed.

A clear, accountable standard reporting of all relevant information to the cabinet secretary improves access to information at the government level and therefore expands the governments ability to meet the requirements of article 25 of the CoK2010. Any limitation in access to information shall only be valid if “its reasonable and justifiable in an open democratic society”. The standard format for reporting in quite comprehensive. Number of community agreements entered to and in force during the year and identities of those who will ultimately benefit from a mineral right’s (beneficial owners). It will be interesting to see how beneficial ownership is treated when it comes to publication of the annual report.

Disclosure of minerals related financial information including those paid to county, and communities will be aggregated and disclosed in a report published on an annual basis. The treatment of National Mining Corporation in terms of information disclosure needs to be recognized. The regulations require that all community agreements, financial payments including corporate tax, net profit, royalties, dividends, and of all manner of fees shall be disclosed albeit in an aggregated manner.

The option of verifiable reporting of payments in kind is also makes reporting standards adds another carat. This is especially given the fact that commodities change is value per time. Value at reporting dates and changes in value would be critical. During periods when there is a strong rise or fall in commodity prices, in-Kind payments information could be interesting source of public scrutiny. Kakamega County was paid 1,000 tonnes of 21 carat gold in-Kind at USD 20. 00 per gram.

In an April Civil society training by WWF’s on how to use the fantastic online facility www.SIGHT.org, it was a shame to see how few of Kenya’s mining claims and agreements are publicly available for civil society or communities to constructively engage with. An online chat forum by the extractivesbaraza showed support for disclosure of contracts and their confidentiality clauses including in mining limited where it can be reasonably and justifiably defended is an open and democratic society.

The ball is on the court of implementation therefrom.