Editorial Commentary (Prime Africa News)
When Parliament enacted the Mining Act, 2016, it was hailed as a landmark reform. For decades, Kenya’s mining sector had suffered from corruption, arbitrary cancellations, and investor uncertainty.
The Mines Review Board (MRB) was created under the 2016 Mining Act as a safeguard for investors. Its role was meant to be simple and limited: hear disputes or appeals when investors suspected misconduct by Ministry officials; provide a neutral check against arbitrary cancellations or unfair treatment; and protect investors from the corruption that had plagued the licensing system for years. The Cabinet Secretary (CS) was to act only on advice from the MRB in such disputes. Neither the CS nor the MRB were ever meant to be involved in the normal process of renewing prospecting licenses.
Yet nearly a decade later, questions are being raised about whether the MRB has strayed from its mandate. Investors and industry watchers allege that what was meant to be a shield against corruption has instead become a bottleneck in routine licensing, eroding confidence in Kenya’s ability to attract exploration capital.
Instead of staying in their lane, the MRB and the CS have overstepped: investors are told they must wait for MRB and CS approval before their license is secure. The MRB has started interfering in renewals, when its role was only ever to resolve disputes. This creates uncertainty, delays, and manipulation — exactly what the MRB was designed to prevent.
Under Section 36 of the Mining Act, a prospecting license (PL) runs for three years and may be renewed once for a further three years. The intention is clear: oversight and accountability, especially ensuring that communities are consulted and environmental standards are met.
However, the process is not framed as an automatic renewal but as a fresh application. On paper, this promotes good governance; in practice, critics say it creates an opening for delays, insider interference, and new costs every cycle. Each re-application means resubmitting consents, repeating environmental clearances, and exposing technical data that can be misused by officials or competitors.
The Mining Act did not envisage the MRB as a gatekeeper for renewals. Its mandate is strictly appellate — stepping in when disputes arise. Renewal decisions are administrative, not judicial. Yet industry players claim that both the MRB and the CS increasingly insert themselves into the renewal process, forcing investors to await approvals that were never meant to involve them.
The result is uncertainty: prospectors who meet their obligations still cannot rely on continuity. Worse, the perception grows that every renewal is an opportunity for manipulation. This is the opposite of the stability that investors require to spend millions on surveys, drilling, and exploration.
Kenya’s Constitution is not silent on property and administrative justice. Article 40 protects against arbitrary deprivation of property, while Article 47 guarantees fair, reasonable, and timely administrative action. Critics argue that treating renewals as re-applications undermines both principles, because it allows rights already earned through compliance to be stripped away on technicalities or through delay.
When a prospector applies for and receives a Prospecting License (PL), they should have a clear right to renew the license if they meet their obligations. Renewal gives investors confidence to spend money on surveys, drilling, and exploration. With a secure license, investors can sell or transfer it if they choose, recovering value for their risk and investment. But under the current system: renewal has been replaced by re-application. Each re-application exposes investors to insider interference, fresh costs for community consents, and the risk of losing
their discovery. This instability means a prospector cannot realize the value of their license — it becomes worthless if it can be stripped away after one year.
The broader constitutional values — integrity, transparency, and accountability under Article 10 — demand that licensing be predictable and insulated from abuse. The current framework, however, leaves too much discretion in the hands of officials.
No one disputes the State’s sovereign right over mineral resources. But sovereignty must be balanced with predictability. Prospectors who take the risk of exploring uncharted ground deserve reasonable continuity if they meet their obligations. Otherwise, discoveries risk being captured by insiders rather than developed into projects that benefit communities and the national economy.
This is not a theoretical concern. Globally, investors weigh legal stability when choosing where to commit exploration funds. If Kenya is perceived as a jurisdiction where licences can evaporate at re-application, the capital will flow elsewhere.
The MRB and CS have an important role: protecting investors from arbitrary action, not becoming part of the licensing choke point. A clear distinction must be drawn between renewal (where obligations are met) and re-application (where new consents may be justified).
If the Mining Act, 2016 inadvertently created a loophole, Parliament has the power to amend it. If not, then strict adherence to the original legislative intent is required. Investor protection and constitutional fairness demand no less.
Kenya has vast mineral potential. But to unlock it, the system must not only be sovereign — it must be trusted.
The MRB and the CS were meant to protect investors from corruption — not to insert themselves into licensing renewals. By overstepping their mandate, they have turned a safeguard into a choke point, undermining investor confidence and blocking Kenya from realising the benefits of global exploration capital.
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