3. Specific cases of mining conflicts in Kenya

inequality than states with similar incomes: the more that states rely on mineral exports, the smaller the share of income that accrues to the poorest twenty percent of the population ([23], p. 377)." In other words, sharing of benefits accruing from mining operations is not equally

Oil conflict in Darfur region of western Sudan is another example of note. The Misseriyya and the Dinka Ngok have long had competing claims over cattle-grazing areas and water sources in this region but environmental degradation (resulting from oil explorations), climatic changes and government support of one militia group over another have exacerbated conflict over land and the sharing of oil revenues. The involvement of the government of Sudan in supporting the one local militia against the other has further complicated the conflict. While acknowledging the contribution of grievances associated with marginalization, indigenous land rights and the exploitation of mineral resources, the continuing impact on the region of the global war on terror, competing imperialisms and sub-imperialisms; the associated interests of multinational mining companies; environmental threats, the interests of international drug-traffickers and human rights abuses inflicted on the civilian populations in both Niger and Mali by the recently US-trained militaries, the ongoing Tuareg rebellions in Niger and Mali are also generally attributed to the Niger Tuareg's demands for a greater and more

The feeling of not benefiting from the mining activities is often hinged on some feeling of "ownership," which in this case, is the feeling among the community that they are the "true" owners of the land (and the minerals) on which the mining process is taking place. This then gives them that natural tendency to expect returns from what is "theirs" [25]. The indigenous landowners in Fiji, for instance, believe that land ownership extends to everything below and above the area of land they own, and this includes the minerals found below and the sky above ([26], p. 116). It is this feeling of "ownership" that then leads to demands for a share of the

The high-handedness of governments in dealing with mining protests is also cited as another reason that sparks conflict. For instance, the ugly reprisal by the Indonesian army against protesters in West Papua is suggested as the main reason why the mining conflict in West Papua has gone on for this long ([27], p. 159). In the initial stages, the indigenous peoples were only protesting against the pollution of the Ajwa River by the Grasberg mine, owned by Freeport McMoran of New Orleans ([27], p. 159). In late 1970s, the locals (the Amungme) rebelled and destroyed the pipeline carrying copper concentrate to the coast; this was followed by ugly reprisals by the Indonesian army that was characterized as particularly terrible ([27], p. 159). This sparked outrage among the local community that has persisted to date. In furtherance to their protest, the Amungme community lodged several class action suits in court. Reports document that the Amungme representative, Yosepha Alomang, was subjected to horrible detention conditions as a result of these court cases. This is reminiscent of how the Maasai in Kenya (as will be discussed later) have been brutalized by the police whenever they

The Liphokojoe conflict is yet another example that is of interest. In the early 1960s, individual diggers came from South Africa and various parts of Lesotho to Kao in northeast Lesotho to

attempt to publicly protest against the Magadi Soda Ash mining project.

shared, and this, therefore, brings about tension and conflict.

equitable share of the country's uranium revenues [24].

accruing benefits.

66 Social Responsibility

Let us now turn our attention to Kenya, and examine the causes of conflict within mining enterprises in this East African state. In this discussion, we shall examine the Kwale titanium project and the Magadi soda ash project.

The impact of mining on the environment has been argued as one of the major factors that drive the Kwale titanium mining conflict [30]. The titanium minerals targeted for exploitation in this project have impurities of iron, thorium and uranium, and that in the absence of an effective environmental management plan (EMP), the effects of stockpiling radioactive wastes and other impurities could lead to environmental degradation in both the terrestrial and marine environment. Further, it is argued that the inadequate compensation offered has also caused much disaffection among the displaced community as it did not take into account family size and structure, family assets and the cost of relocation ([28], pp. 73–74).

The concerned company, however, argued in defense stating that the environmental concerns pointed out have been addressed via an Environmental Impact Assessment (EIA) carried out in 2000—and for which approval by the National Environmental Management Authority (NEMA—the government body charged with the responsibility of assessing projects that may have an impact on the environment), was obtained and a license issued in July, 2002. Thereafter, NEMA approved the project's Environmental Management Plan (EMP) in January, 2003. The host resettlement site was also subjected to an EIA exercise, whose mitigation plans were approved in 2006. The company further argued that the project had taken note of the potential environmental impact resulting from radioactive waste, and it was for this reason that it undertook the EMP exercise for which approval was obtained. Furthermore, the EMP pointed out that only very low "unharmful" levels of radioactivity occur naturally in the sands of the Kwale deposit, and even then, an elaborate system under the EMP had been put in place to manage the radioactivity levels. As for the matter of lost arable land, the company maintained that the area cannot be classified as supporting luxuriant agriculture as claimed by those who oppose the project. At best, the company argued, in agricultural terms, it could only be described as marginal land with subsistence farming being the norm. Further, the company argued that access to the sea was not restricted as the mine was located 12 km inland and as such, the project does not encroach on the sea or fish landing points enjoyed by the community [31]. Critics of the project however counter that restriction arises as the residents had been relocated further inland, far away from the sea. As for the issue of compensation, the extractive company (Tiomin-Kenya) maintained that the rates had been mutually arrived at through joint consultation between the government, the residents, and the company through the District Resettlement and Compensation Committee [28].

complaint outside the stipulated legal statute of 6 years in terms of government notice of 1920. However, how many Maasai would have had access to this legal notice of 1920, let alone the fact that they would have been unable to read it in the unlikely event that they had possession of it? To further stress the illegality of the possession of the Maasai land, it is noted that Provincial Commissioner Sweatman had in 1933 asserted that the mining clause in the 1911 Maasai agreement did not apply to the Magadi area, and as such, the mining company had illegally been occupying the said mines at that juncture (since 1911) ([32], pp. 157–158).

Mining Conflicts and Corporate Social Responsibility in Kenya's Nascent Mining Industry: A Call…

http://dx.doi.org/10.5772/intechopen.77373

69

Failing to obtain a favorable ruling in court, the Maasai were patiently waiting for the lease to expire in 2023 at which time they would ask the independent government to correct the ills perpetuated by the colonial government. However, to their surprise, the Kibaki government that assumed power in 2002 extended the lease in 2004 for another 33 years—this was done despite open protest from the Maasai. The resultant court case was thrown out on a technical-

However, land was not the only grievance that the Maasai bore against the Magadi mining project. Once operations on the project commenced, the community complained over the chemical stench from operations at the lake, a stench that was said to result in human sickness and health hazards. They demanded, and to date continue to demand, payment of royalties that were promised under the 1904 and 1911 agreements, but which have never been honored.

for 50 years they have drained the life blood of the Masai13, and the Masai are now as dry as twigs… The Company had stolen Masai water…So where are all the profits of the company

The Maasai also protested against the high-handedness with which the previous colonial and successive Kenya post-independent governments treated them whenever they have attempted to hold peaceful demonstrations. It is reported that one of the most vocal opponents of the mining venture, a lawyer for the Maasai on the cases lodged against the post-independent government, was shot dead in 2005 in an alleged robbery outside his suburban house in Ngong, where nothing was stolen from him. The perpetrators of this crime have to date not been brought to justice. It is everyone's guess who could have been responsible for the murder —"those who did not wish to rock the Magadi boat because they were beneficiaries of the

In view of the above conflicts, the government and the company need to take careful measures that would assuage the disaffection of the affected mining communities against the two

4. The place of corporate social responsibility (CSR) in the mining industry

The popularly used definition for Corporate Social Responsibility in literature is that adopted by the Commission of the European Communities (CEC), which defines it as a system

ity, and demonstrations thereafter met with brutal police force.

This caused one community leader to remark in the 1960s that:

operation and had received kickbacks and shares ([32], p. 153)."

mining projects. This where CSR comes in.

going? Into the pockets of Europeans ([32], p. 153).

A discussion on mining conflict in Kenya is incomplete without mention of the longest conflict in the history of mining in Kenya: the Magadi Soda-Ash Mining. This conflict dates back to 1904 when a mining lease for this project was issued by Sir Donald Stewart, then the British East African Commissioner for the British colonial government. Opposition to this mining project, which has been on-going since 1904, hinges on the manner in which agents of the East African syndicate, the company that was at that time granted a "research" license to prospect for minerals in the then Maasai Reserve, "fraudulently" acquired large tracts of Maasai land for the purpose of mining the naturally occurring trona at Lake Magadi, situated some 120 km south-west of the city of Nairobi [32].

Whereas the Maasai "agreement" of August 8th, 1904 only allowed for European settlement, a move that physically displaced them from the wider Maasai land and into northern and southern reserves created for their settlement, they were made to sign additional "agreements" on August 9th and 15th, 1904 in which they gave their "consent" for mining to take place at Lake Magadi. The 20-year lease (later revised to a 99-year lease on April 12th, 1911) gave "full and uninterrupted right…to dig, get win and carry away all soda and other deposits minerals or precious stones there found ([32], p. 142)."

This concession was unfair, given that they were granted on land reserved for dispossessed Maasai communities. It is argued that the first Maasai agreement of August 8th, 1904 had expressly stated that these reserves were not to suffer any further excision, except upon "express consent" by the affected community. A careful look at the handwritten original 1904 document shows that the so-called "consent" to vacate the land was inserted in the agreement after the Maasai representatives had "signed" (thumb print impressions were used as there were hardly any educated Maasai then) the agreement. A second agreement granting extended lease into more areas occupied by the Maasai in the designated reserves were "signed" in 1911 on four separate dates, on April 4th, 13th, 19th, and 26th, 1911. A case challenging this extension was lodged in 1954 but the Maasai lost on grounds that they had lodged their complaint outside the stipulated legal statute of 6 years in terms of government notice of 1920. However, how many Maasai would have had access to this legal notice of 1920, let alone the fact that they would have been unable to read it in the unlikely event that they had possession of it? To further stress the illegality of the possession of the Maasai land, it is noted that Provincial Commissioner Sweatman had in 1933 asserted that the mining clause in the 1911 Maasai agreement did not apply to the Magadi area, and as such, the mining company had illegally been occupying the said mines at that juncture (since 1911) ([32], pp. 157–158).

approved in 2006. The company further argued that the project had taken note of the potential environmental impact resulting from radioactive waste, and it was for this reason that it undertook the EMP exercise for which approval was obtained. Furthermore, the EMP pointed out that only very low "unharmful" levels of radioactivity occur naturally in the sands of the Kwale deposit, and even then, an elaborate system under the EMP had been put in place to manage the radioactivity levels. As for the matter of lost arable land, the company maintained that the area cannot be classified as supporting luxuriant agriculture as claimed by those who oppose the project. At best, the company argued, in agricultural terms, it could only be described as marginal land with subsistence farming being the norm. Further, the company argued that access to the sea was not restricted as the mine was located 12 km inland and as such, the project does not encroach on the sea or fish landing points enjoyed by the community [31]. Critics of the project however counter that restriction arises as the residents had been relocated further inland, far away from the sea. As for the issue of compensation, the extractive company (Tiomin-Kenya) maintained that the rates had been mutually arrived at through joint consultation between the government, the residents, and the company through the District

A discussion on mining conflict in Kenya is incomplete without mention of the longest conflict in the history of mining in Kenya: the Magadi Soda-Ash Mining. This conflict dates back to 1904 when a mining lease for this project was issued by Sir Donald Stewart, then the British East African Commissioner for the British colonial government. Opposition to this mining project, which has been on-going since 1904, hinges on the manner in which agents of the East African syndicate, the company that was at that time granted a "research" license to prospect for minerals in the then Maasai Reserve, "fraudulently" acquired large tracts of Maasai land for the purpose of mining the naturally occurring trona at Lake Magadi, situated some 120 km

Whereas the Maasai "agreement" of August 8th, 1904 only allowed for European settlement, a move that physically displaced them from the wider Maasai land and into northern and southern reserves created for their settlement, they were made to sign additional "agreements" on August 9th and 15th, 1904 in which they gave their "consent" for mining to take place at Lake Magadi. The 20-year lease (later revised to a 99-year lease on April 12th, 1911) gave "full and uninterrupted right…to dig, get win and carry away all soda and other deposits minerals

This concession was unfair, given that they were granted on land reserved for dispossessed Maasai communities. It is argued that the first Maasai agreement of August 8th, 1904 had expressly stated that these reserves were not to suffer any further excision, except upon "express consent" by the affected community. A careful look at the handwritten original 1904 document shows that the so-called "consent" to vacate the land was inserted in the agreement after the Maasai representatives had "signed" (thumb print impressions were used as there were hardly any educated Maasai then) the agreement. A second agreement granting extended lease into more areas occupied by the Maasai in the designated reserves were "signed" in 1911 on four separate dates, on April 4th, 13th, 19th, and 26th, 1911. A case challenging this extension was lodged in 1954 but the Maasai lost on grounds that they had lodged their

Resettlement and Compensation Committee [28].

south-west of the city of Nairobi [32].

68 Social Responsibility

or precious stones there found ([32], p. 142)."

Failing to obtain a favorable ruling in court, the Maasai were patiently waiting for the lease to expire in 2023 at which time they would ask the independent government to correct the ills perpetuated by the colonial government. However, to their surprise, the Kibaki government that assumed power in 2002 extended the lease in 2004 for another 33 years—this was done despite open protest from the Maasai. The resultant court case was thrown out on a technicality, and demonstrations thereafter met with brutal police force.

However, land was not the only grievance that the Maasai bore against the Magadi mining project. Once operations on the project commenced, the community complained over the chemical stench from operations at the lake, a stench that was said to result in human sickness and health hazards. They demanded, and to date continue to demand, payment of royalties that were promised under the 1904 and 1911 agreements, but which have never been honored. This caused one community leader to remark in the 1960s that:

for 50 years they have drained the life blood of the Masai13, and the Masai are now as dry as twigs… The Company had stolen Masai water…So where are all the profits of the company going? Into the pockets of Europeans ([32], p. 153).

The Maasai also protested against the high-handedness with which the previous colonial and successive Kenya post-independent governments treated them whenever they have attempted to hold peaceful demonstrations. It is reported that one of the most vocal opponents of the mining venture, a lawyer for the Maasai on the cases lodged against the post-independent government, was shot dead in 2005 in an alleged robbery outside his suburban house in Ngong, where nothing was stolen from him. The perpetrators of this crime have to date not been brought to justice. It is everyone's guess who could have been responsible for the murder —"those who did not wish to rock the Magadi boat because they were beneficiaries of the operation and had received kickbacks and shares ([32], p. 153)."

In view of the above conflicts, the government and the company need to take careful measures that would assuage the disaffection of the affected mining communities against the two mining projects. This where CSR comes in.
