This archive report was first published on 2 January 2020.
January 2, 2020, marked a significant day in Kenya's governance conversation, with a column by Charles Wanguhu shedding light on a crucial aspect often overlooked in the pursuit of good governance.
Wanguhu argues that the focus on law reform as a precondition for successful reform is a blind spot in the conversation. This emphasis on legislative development often leads to scarce attention being paid to implementation, with the end of the legislative process being seen as a key success.
However, inadequate resourcing of the implementation process stalls the development of regulations, leaving the line ministries to bear the brunt of implementation. This is a challenge, especially when the laws in question seek to curtail the powers of the same ministries tasked with implementation.
Wanguhu uses the example of the Mining Bill 2016, which aimed to revive Kenya's mining industry and support its contribution to GDP. The law sought to address governance gaps, including the cancellation of several mining licenses issued during the Kibaki presidency.
The cancellation of these licenses left the country exposed to suits in foreign jurisdictions, with significant funds being spent to defend against these claims. In one case, Cortec Mining claimed $2 billion from the government for the cancellation of its license.
The development of the mining law and licensing process was influenced by these events, with the establishment of bodies such as the National Mining Corporation and the Mineral Rights Board. However, the Mineral Rights Board, tasked with advising the Cabinet Secretary on mineral rights agreements, has been rendered ineffective due to lack of budget and resourcing.
Furthermore, the lack of a feedback mechanism for the ministry to provide accountability to the board has exacerbated the issue. The online cadastre system, established to receive and process applications, has been rendered ineffective, with shadowy characters still in charge of licensing at the back end of the system.
Wanguhu concludes that the law, as envisaged, is failing to achieve its stated aims and goals, with failed implementation being a major concern. While it may be early to judge the law, the current state of affairs raises questions about the effectiveness of the regulatory framework.
