Public Inquiry Report on Mining activities In Taita Taveta County

Since 2015, the Kenya National Commission on Human Rights (KNCHR) received and documented complaints from individuals and groups in the larger Taita Taveta County in relation to mining activities and alleged violation of human rights. In order to fully understand and ascertain the nature and extent of the complaints arising out of the mining activities in the County, the Commission deployed several investigative missions as a first step to address the issues and concerns that had been brought to the attention of the Commission.

From the preliminary findings of the Commission’s investigative missions, a number of cross-cutting and systemic human rights issues came to the fore. Some of these included:

• Land issues;
• Environmental degradation;
• Poor working conditions for mine workers;
• Sexual and Gender Based Violence;
• Deteriorating education standards within the mining areas of Taita Taveta County largely due to child labour;
• Insecurity as a result of the unregulated sector;
• Conflict between the National and County Government on sharing of the mining activities proceeds and
• Lack of community participation in decision making in regard to access to land, mining and revenues generated from the mines.

The Commission set to conduct a public inquiry that was titled: “Public Inquiry on Mining in Taita Taveta and Its Impact on the Enjoyment of Human Rights”. The public inquiry sessions took place from August 22^nd to September 2^nd 2016 in the Taita-Taveta Sub-Counties of Voi, Mwatate and Wundanyi. Through the public inquiry, the Commission was also responding to one of its key strategic objectives, which is enhancing the enjoyment of Economic, Social and Cultural Rights for Kenyans as enshrined in Article 43 of the Constitution of Kenya. The public inquiry also sought to promote the enjoyment of fundamental freedoms as envisioned in Chapter 4 of our Constitution.

Prior to the Public Inquiry sessions, the Commission carried out the following pre-inquiry sessions:

1. Community Empowerment Forums

Realising the awareness gap in the community, the Commission carried out forums to educate the community on their rights, the legal and policy provisions in the law and their constitutional entitlements as far as management of land and mineral resources is concerned.

2. Investigations into Human Rights violations

Following the various complaints received from the community during the forums, the Commission carried out investigations into the various violations and established that indeed there were human rights violations occurring in Taita Taveta County.

3. Stakeholders Engagement Forums

The Commission convened the State’s duty bearers, the business community representatives, the unregulated artisanal miners, Community Based Organizations and Civil Society Organizations in Taita Taveta County. All the stakeholders raised their concerns on the mining sector and they agreed that a public inquiry was necessary to help in identifying the salient issues in the sector with a view to finding suitable solutions.

4. Training of Community Mediators

Subsequent to the investigative missions and the community sessions the Commission conducted, it was evident that there were existing and impending conflicts emanating from the mining sector. This position notwithstanding, some of the conflicts could easily be resolved in their early stages. Consequently, the Commission trained 20 mediators who would be able to assist conflicting parties by employing alternative justice resolution systems.

5. Witness Statements

The Commission obtained witness statements that were necessary for presentation during the Public Inquiry. The witness statements were recorded from the Artisanal and small scale miners, large scale miners, community members affected by mining and civil society organisations in Taita Taveta County. Investors, duty bearers, National and County public officials appeared before the Public Inquiry panelists and gave oral evidence or made written submissions on the impact of mining activities on the enjoyment of human rights violations in Taita Taveta County.

6. Preparation of witnesses

In order to have credible evidence and presentation of witness statements, the Commission planned sessions for individual witnesses during which they were taken through the procedure of presenting their complaints and allegations before the Public Inquiry panel. Witnesses who did not wish to appear in public were heard in camera and that the confidentiality of the process was therefore observed.

This Public Inquiry Report that is being released today details the outcome of a robust public inquiry process that brought on board state, non-state actors as well as the community. The Report focuses on the analysis of the inquiry findings while providing very clear and actionable recommendations. This Report will help set a baseline for human rights protection in the mining sector. The detailed and extensive findings and recommendations are covered in the published final report that is being launched today.

The Key Findings and Recommendations are summarised as here below.

1. Land Rights

• Non-inclusivity in decision making and conflicting claims to land rights. Communities in Taita Taveta complained of non-involvement in the land ownership decisions affecting potential and active mining areas.
• Compromised accuracies in determining the spatial extent of land rights. This finding exposed the gap in implementing accurate land surveys and access to accurate and up-to-date land records in Taita Taveta County.
• Delayed and denied enjoyment of claimed land rights. Due to the land ownership disputes in Taita Taveta County that have remained unresolved for long, the communities affected, cannot enjoy the right to use the land they claim to be theirs, either for subsistence or economic reasons. This is rampant in Kishushe area of Wundanyi Sub- County.  
• Loss of entitlement to land due to irregular practices has given room to some miners operating without licence. The Public Inquiry noted double licensing, with some cases already in Court. Further the public inquiry confirmed that most land owners did not have title deeds.

Kenya National Commission on Human Rights makes the following recommendations to address violation of Land rights:

Planning of land adjudication processes in Taita Taveta County must be participatory in nature and executed by actively involving local communities in an open, fair and transparent process. Policies and systems must be established and implemented for accurate land surveying and mapping in Taita Taveta’s mining areas before allocating any rights to mining on the lands in question. National and County Governments should also expedite the establishment of a functional Land Information System (LIS) with seamless digital integration of County land records and national land parcel data. The Judiciary should also speed up the resolution of court cases on land and mining rights, in order to allow mining investors and land owners to enjoy the economic benefits of the land sections that are rightfully theirs.

2. Environmental Rights

• Members of the Communities were exposed to environmental health and safety risks from the mining activities in Taita Taveta County. The Kenya National Commission on Human Rights confirmed that open pits and weak support in underground mines have claimed many innocent lives and caused serious injuries to people and animals, with reported cases of collapsing mines, flood waters entering the mines while the miners are inside. The Public Inquiry was informed that criminal elements were also using the uncovered pits as hideouts. Reports on lack of safety gears for workers meant that they were highly exposed to harmful particles and gases. Pollution of water, soil and air arising from mining activities was observed to be a key source of health problems in the County. Blasting activities caused noise pollution and weakened the built structures and buildings near the mining areas.

• Diminishing environmental benefits and opportunities due to land degradation. Soil erosion from mining activities has claimed farmlands and accelerated siltation of watercourses. As a result, food production has been adversely affected.
• Violation of the rights of the present and future generations to sustainable ecosystem. Deforestation and land clearance to pave way for mining activities was also rampant in the mining areas of Taita Taveta County. 

Kenya National Commission on Human Rights makes the following recommendations to address the findings on violation of Environmental rights:

There should be a well-designed health and safety programme for miners and the investors, including mining safety plans, especially the underground ones. There should also be strict implementation of a policy on rehabilitation of mine sites after mining activities have stopped. Since some mines could be having radioactive materials, it is important to establish the properties of the minerals in a mining area before embarking on mining. The investors should consider improved mining technologies such as mechanisation of mining activities to reduce risks to workers.

A framework for corporate environmental reporting for the mining sector is also required. Strengthening the capacity of Taita Taveta County’s Environment Committee and Community-Based Organisations that are dealing with environmental issues at the grassroots is key. There is a need to develop and implement appropriate Rehabilitation and Decommissioning Action Plans (RDAP), especially for rehabilitation of degraded areas. The establishment of a Mining Restoration Fund need to be considered as part of the redress mechanism. This will support the rehabilitation of degraded areas and addressing other environmental issues in mining.

There is also a need to come up with an Environmental Management Plan (EMP) for the mines. NEMA should ensure compliance with the Environmental Management and Coordination Act of 2015, with an Environmental Impact Assessment study being carried out and then the mine investors licensed.

3. Labour Rights

• Mine employees were subjected to low pay and violation of employee rights. The mine workers reported that besides poor pay and long working hours (12 hours a day), they were denied basic rights such as contract letters, leave days, statutory deductions such as NHIF and NSSF and health insurance. Compensation of injured workers or their families in cases of death was also reported to be lacking.

• The mine workers reported that they were subjected to risky and unhygienic working environment. They were not getting protective gear to shield them against harmful objects and substances, and against cold nights. Clean water and sanitation facilities were generally missing and in most cases the conditions were deplorable and undignified. Poor nutrition of the workers on the mine sites, with cases of unclean foods cooked in dilapidated drums, were cited as part of the evidence that was given to the KNCHR led Public Inquiry.

Kenya National Commission on Human Rights makes the following recommendations to address the findings on violation of Labour rights:

The welfare of mine workers should be taken seriously by their employers. The employers should observe strict adherence to labour laws and the relevant provisions for remuneration, written contract, working hours, safety gear, hygienic and safe working conditions, worker compensation policy, leave days, medical insurance and statutory deductions. The mining companies should prepare and strictly implement plans for Corporate Social Responsibilities activities and skills transfer to their employees, since the mine workers have a right to skills transfer and enhancement.

4. Children Rights

• Violation of the right of children to (quality) education, sound nurturing, sound care and respectful treatment.

It was reported that children dropped out of school to work in the mines especially in Kamtonga area, of Mwatate sub- County. The children were also sexually abused by mine workers in various social places due to the allure of money. Their parents, who stay away on the mine sites for long hours but get poor pay in return, have not been able to accord them quality parenthood and emotional care as a result. 

Kenya National Commission on Human Rights makes the following recommendations to address the findings on violation of Children rights:

The Commission proposes that there should be regular and enhanced monitoring, awareness creation on rights violations and administration of justice with particular focus on identifying violations of children rights to education, protection against child abuse and sexual harassment and to quality healthcare and parental care. The Commission further recommends banning of all forms of child labour in the mines and closing bars and businesses that entertain the abuse of children within their premises.

5. Gender Rights

• Violation of rights to non-discrimination through equal opportunities. Women reported during the Public Inquiry job discrimination against them in the mines. They cited cases where they were chased away from the mines by their male colleagues. 

• Sexual abuse and harassment in the mining sites. Cases of sodomy were cited during the Public Inquiry. Women bear the brunt of sexual abuse. Extreme cases of assault were reported where women were subjected to indecent searches.
• Violation of family rights. The long absence of some spouses (especially husbands) while working in the mines, led to denial of family rights. This has forced the abandoned spouses (mainly women) into risky multiple sexual liaisons.

Kenya National Commission on Human Rights makes the following recommendations to the findings on violations of Gender rights:

Measures are needed to ensure regular and enhanced monitoring, awareness creation on rights violations, and administration of justice with particular focus on identifying the plights of the assaulted workers and gender discrimination, especially among female workers. Compensation of the victims of sexual abuse and assault requires top priority. The cases of sexually abused workers are grave and need to be heard and resolved speedily to avoid impunity and repeated occurrences. The employers of mine workers and the workers’ unions need to enforce mutually agreed work policies in addition to the existing labour regulations. Work schedules should be reformed, to be friendly to sustainable family re-union.

In conclusion, the Public Inquiry established important first-hand information on the violation of human rights in the mining sector of Taita Taveta County. The local communities hold the promise of transforming the mining sector of the County and must therefore be involved in public participation process. The Commission will also use the opportunity presented by the findings and recommendations of the Public Inquiry to start an engagement aimed at empowering the local communities so that they can effectively participate in the decision-making process, especially on various aspects that touch on their enjoyment of human rights in the mining sector. The ultimate goal is to encourage the community to demand for accountability and redress for human rights violations from the relevant authorities.

The Commission commends the enactment of two salient Acts of 2016; The Mining Act and The Community Land Act. We urge the government to operationalize the contents of these two Acts as they go a long way towards solving and mitigating some of the issues highlighted in the inquiry report.

The Judiciary must also play its critical role to address historical injustices in mining and land rights in Taita Taveta County. Kenya National Commission on Human Rights will support Alternative Dispute Resolution mechanisms where land disputes were identified. This will ensure effective long-term settlement of mining disputes.

Kenya National Commission on Human Rights Public Inquiry observed that land ownership as the catalyst of the reported mining disputes in Taita Taveta County, and therefore deserves critical attention. Reliable and objective boundary information is essential to administering justice in assigning rights to mining and land ownership. The mining activities in Taita Taveta County require political good-will at both levels of Governments. It must be the top agenda for positively transforming Taita Taveta’s mining sector especially in the affected three Sub-counties of Voi, Mwatate and Wundanyi.

Kenya National Commission on Human Rights also call on the members of the Fourth Estate, our media, to work closely with the Commission in disseminating and publicizing the final Public Inquiry findings and the recommendations being launched today.

Kenya National Commission on Human Rights calls upon both levels of Governments and the Judiciary to implement the recommendations of the “Public Inquiry on Mining in Taita Taveta and Its Impact on the Enjoyment of Human Rights”.

The Commission acknowledges the invaluable support it received from GIZ throughout the inquiry process.