Kenya’s Mining Act has been harmonized with existing environmental legislation, as it requires mineral rights holders to comply with the requirements of the Environmental  Management and Co-ordination Act, 1999 (EMCA). For Artisanal miners, it provides that holders are to observe good mining practices, health and safety rules and pay due regard to the protection of the environment and the Cabinet Secretary is to prescribe regulations for the protection, health and safety of ASM operations. 

Kenya’s Mining laws emanate from the Constitution of Kenya (2010) which is the supreme law of the land and binds all persons and all state organs at both levels of Government. In Kenya, the land belongs to the people as a nation, communities and individuals.  Land in Kenya is classified as public, community or private land and minerals and mineral oils fall under public land. The minerals vest in and are held by the Government in trust for the people. 

Several rights are emanating from Chapter 4 of the Constitution that apply to ASMs, these include the right to freedom and security which connotes persons not being deprived of freedom arbitrarily or without just cause or to be treated in a cruel or inhuman or degrading manner; human dignity; right to access to information; freedom of assembly, peaceable demonstration and petition; economic and social rights which include the right to access adequate housing and reasonable standards of sanitation, freedom from hunger, social security and education. The definition of ASMs is controversial, with negative associations attributed to them. It is tainted with its association to smuggling, tax evasion, health and safety risks, socio-cultural dislocations, unregulated and varied illicit activities. 

Kenya’s Mining and Minerals Policy Sessional Paper No. 7 of 2016 recognised the potential of the ASM sector and its strategy called upon the National Government to mainstream and formalize ASM mining operations to support livelihoods and entrepreneurship. The policy provided that the Government would remove barriers holding back the development of ASMs, this is with regards to the lack of access to finance, recognition of gender and prohibitions on the exploitation of child labour, recognized mineral rights, inadequate technical capacities and provision of incentives to operate legally. 

The policy complements the Mining Act No. 12 of 2016, which provides for the recognition of “artisanal mining” which connotes the traditional and customary mining operations using traditional or customary ways and means. The Mining Act guides as to who qualifies to be an artisanal miner: individuals have to be citizens of Kenya, have attained the age of majority and may be members of an artisanal mining cooperative association or group. 

Mining permits grant the holder the authority to carry out small scale mining operations. The absence of mining permits for persons carrying out mining operations, using customary or traditional means, infers that they are carrying out such activities without authority being given and such actions can be categorised as unlawful or an illegal act. 

Despite the recognition of ASMs within the law, our engagements with ASMs informed us that they were not pleased with the negative associations that come with it including discrimination The COVID-19 pandemic has further compounded their challenges as with all sectors. The pandemic has deepened pre-existing inequalities, exposing vulnerabilities in social, political and economic systems.