A LEGAL FRAMEWORK THAT WILL ENABLE KENYA BENEFIT FROM ITS MINERAL RESOURCES: THE ‘PARADOX OF PLENTY

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Abstract

This research paper will seek to examine what economists have dubbed the ‘Research curse’, ‘Paradox of plenty’ or the Dutch Disease’. It is a phenomenon that has been observed among most nations that are ‘Resource rich’ where the endowment of natural resources never seems to translate to actual benefit to the citizenry.

This paper will explore whether Kenya is capable of benefiting from its resources or whether Kenya will, as other nations, fall prey to this phenomenon. The Constitution of 2010 in article 69 clearly states that,

“The State shall ensure sustainable exploitation, utilization, management      and conservation of the environment and natural resources, and ensure                   the equitable sharing of the accruing benefits”

 

Section 4 of Mining Act of 1986 states that,

 

“All unextracted minerals (other than common minerals) under or upon  any land are vested in the Government, subject to any rights in respect thereof which, by or under this Act or any other written law, have been or are granted, orrecognized as being vested, in any other person.

 

This has the effect of vesting all mineral resources on the government. It would be better if the term used was state, in the Mining Act as in the Constitution. The term government, refers to the group of people that govern a community or unit or country. However the word state refers to a more permanent situation and is also more inclusive of the citizenry.

 

By virtue of these provisions, all mineral resources belong to the government and should therefore be used for the benefit of all citizens. The perception that mines belonged to the state is an old concept. Anyone wishing to open up or work a mine in classical Athens had to register it with the poletai (the sellers of state property). It was an offence to work up an unregistered mine.[1]

 

[1] Douglas Mac Dowell, The Law In Classical Athens (Cornel University Press, 1978) 137

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