Kenya-US Sh9.7 trillion Kwale mineral deal faces legal hurdles

The preliminary deal between Kenya and the US on the extraction of rare earth and niobium deposits at Mrima Hill in Kwale County, valued at Sh9.7 billion, has run into a legal landmine.

This is after a civil society organisation filed a case in a Mombasa court, terming the deal opaque, as Kenyans, including Kwale residents, were not involved in line with the Constitution.

The petitioner argues that specific contract and framework details of the agreement between Kenya and the US are shrouded in secrecy and remain opaque and vague to the public.

The Center for Litigation and Trust (CLT) argues that there has been non-disclosure of the environmental impact assessment, benefit-sharing framework and ownership details.

Under Article 71 of the Constitution such agreements require parliamentary approval, says CLT, adding there was “no conscious or even feigned attempt to involve Kwale County government".

"Whereas the extracted minerals must be processed in Kenya, timelines and facility locations to date remain unpublished. Locals have been excluded,” say CTL Executive Director Julius Ogogoh.

He argues that Article 10 of the Constitution binds all state officers and state organs to apply the rule of law, participation of the people and social justice to such projects.

The petition before Justice Francis Weche Andayi cites the Mining Cabinet Secretary as the first respondent, the Attorney General as the second respondent, and the Kwale County Government, Kenya Forest Service and the National Museums of Kenya as interested parties.

Last week, President William Ruto, in an interview with Reuters on the sidelines of the G7 summit in France, disclosed that Kenya, on advice by the Ministry of Mining, had officially launched a competitive tender to commercialise rare earth mineral deposits in Kwale.

He said that Kenya and the US had finalised a preliminary agreement to develop the sites of the rare earth and associated minerals at Mrima Hill, Kwame County.

The deal is now before the court.

“The impacted residents have not been provided with the specific project contracts, and the local community forest associations and civic groups in Kwale have been excluded from meetings, which have mostly been closed door,” states the petition by Ogogoh that was filed on Monday.

He said the state should craft modalities of public participation that accord with the nature of the subject matter, taking into account both the quantity and quality of the governed to participate.

“The people of Kwale must know what economic benefits they will derive from the mining activities and express their fears on any radioactivity and other health hazards that may ensue from the mining activities,” said Ogogoh, adding that the local Kaya elders, community forest associations, residents and denizens of Kwale County have been sidelined and remain in the dark.

The petition says that under Article 71 of the Constitution, the preliminary agreement and any agreement ought to be approved by Parliament before its execution.

“Article 71 of the Constitution stipulates that a transaction is subject to ratification by Parliament if it involves the grant of a right or concessions by or on behalf of any person, including the national government, to another person for the exploitation of any natural resources of Kenya and is entered into on or after the effective date,” states Ogogoh.

The petition drafted by Nicholas M. Kamwendwa, Advocate, states that parliament shall enact legislation providing for the classes of transactions subject to ratification.

It argues that the preliminary agreement is a "transaction" within the meaning of Article 71(1) of the Constitution and, as such, it is regulated under Article 71(1) and needs parliamentary ratification.

Ogogoh says that Articles 95(4) and 96 of the Constitution of Kenya, 2010, provide the basis for the Parliament's oversight role by ensuring accountability and transparency in government actions.

“The specific contract and framework details have bypassed and sidestepped parliamentary scrutiny and reduced the necessary oversight role of parliament,” states the petition.

Ogogoh claims that the preliminary agreement and the detailed framework terms are being negotiated in secret with foreign consortia and investors without consulting the Kwale County Government.

“The county government of Kwale has a right to be involved in the negotiation of the preliminary agreement finalised with the United States of America. In the instant case, there was no conscious or even feigned attempt to involve the county government of Kwale,” he says.

Ogogoh submits that given that Mrima Hill has been legally protected since 1961 and is gazetted as a natural heritage and a national monument, the locals must be involved.

Mrima Hill is an indigenous forest reserve and a home to cultural holy sites or sacred Kaya shrines that are ecologically sensitive and culturally significant, particularly to the Nl'kenda and Digo communities, whose traditional customs include taboos around cutting certain trees.

Mrima Hill in Kwale County holds one of the richest untapped mineral deposits on earth, namely niobium and rare earth materials, roughly estimated at Sh 9.7 trillion.

Niobium strengthens steel for jet engines, oil pipelines, and space equipment, whereas rare earths like yttrium, lanthanum, and neodymium are essential for electric vehicle batteries, missile guidance systems, and Al hardware.