An Analysis of the Regulatory Frameworks for Environmental Management in Kenya’s Mining Sector

Abstract

Kenya has a promising mining future, given its rich geological base producing numerous minerals such as gold, coal, titanium, fluorspar, limestone, and salt among many others. The country is also fraught with numerous environmental challenges affecting the mining sector, such as the use of heavy metals and chemicals, eliciting significant environmental pollution and degradation concerns. Several abandoned mines posing grave environmental impacts also inundate some landscapes across the country. To address these challenges, an environmental management regulatory regime consisting of command-and-control (CaC) instruments and liability rules is in place. Unfortunately, such instruments have not always realized sound environmental management in Kenya’s mining sector, especially at the critical and expensive stages of mine site closure and post-closure management. This study analyses Kenya’s environmental regulatory framework governing the mining sector, specifically interrogating the potential applicability of economic incentives (environmental performance deposit bonds) to promote sustainable mining. This is through a case study of Kenya’s titanium mining venture, the Kwale Mineral Sands Project, and the gold mining exploration in the Western Kenya belt. While the titanium mining project in Kwale integrated environmental performance deposit bonds, the later Western Kenya Gold project is on the verge of commencement. Applying a systems theory lens, the study used a qualitative methods research design to critically analyse Kenya’s environmental regulatory framework governing the mining sector. Purposively sampled data from primary and secondary sources was collected using desk review, open-ended questionnaires, key informant interviews, and focus group discussions. On analysis, results indicate a general weakening of the polluter-pays principle (PPP) regime in Kenya, a lack of a clear regulatory framework for the institutionalization of EPDBs, and competing interests among government agencies around the use of environmental protection bonding. All these systematically weaken the prospects of using EPDBs to enhance mining sustainability. On emerging knowledge, there is a need to resolve six fundamental complexities (legal scope of EPDBs, calculating bond amounts, use of hard-cash or alternative financial tools, terms of bonds payment, tackling accrued interest from the bonds, and determining liability period) around Kenya’s nascent EPDB legal regulatory regime. The study recommends a review of the existing regulatory instruments advancing the use of bonding schemes, capacity building of key environmental regulator institutions on deposit bond management and enhanced public awareness of bonding as an avenue for achieving mining sustainability. This will help infuse the benefits of EPDBs in Kenya’s evolving regulatory environment.