COMMERCIAL SAND HARVESTING ISSUES IN LOWER EASTERN

BACKGROUND INFORMATION

In order to appreciate the issues surrounding commercial sand harvesting in Lower Eastern it is important to appreciate the historical and prevailing socio-ecomic as well as the institutional and legislative framework surrounding commercial sand harvesting.

Commercial sand harvesting in Lower Eastern, particularly in Machakos County has been taking place for several decades even before the enactment of the Environmental Management and Coordination Act (EMCA), No. 8 of 1999. The activity has always been more prominent in the drier areas of Machakos County that mainly fall in the current Mwala, Yatta and Masinga districts where commercially viable deposits of building/construction sand occur in rivers, streams and valleys. Other areas in Machakos county that even do not have commercially viable sand deposits like Kangundo, Matungulu, Kathiani, Machakos, and even Athi River are also facing similar challenges.

The growing demand for building sand occasioned by general national growth of the building and construction sector has led to a tremendous increase in commercial sand harvesting activities in these and other areas of Lower Eastern - with consequent adverse impacts on the affected rivers, streams, valleys and even infrastructural facilities like roads.

Due to its nearness to Kenya’s Capital City of Nairobi and its satellite towns of Thika, Athi River and Ruiru, Machakos has always been the preferred source of sand by the dealers and transporters. However the increased demand for sand, coupled with the depletion of the sand resources in Machakos, has led to the commercial sand harvesting activities spreading into the other Counties in Lower Eastern, namely Makueni and Kitui. Therefore Machakos, Makueni and Kitui Counties, whose rivers have sand deposits, are experiencing a multiplicity of social, economic and environmental challenges arising out of commercial sand harvesting/ removal.

Until the enactment of the Environmental Management and Coordination Act (EMCA), No. 8 of 1999, sand harvesting activities were mainly uncoordinated and inadequately controlled under the then existing legislative framework. EMCA brought forth an institutional and legislative mechanism to address environmental impacts of sand harvesting in rivers, lakes and wetlands. The National Environment Management Authority (NEMA) is one of the institutions mandated by EMCA to protect the environment against the adverse impacts of sand harvesting in these ecosystems, while the Environmental Impact Assessment (EIA) process is one of the key legal instruments for environmental management in respect of sand harvesting or removal. The EIA provides for identification of potential positive and negative environmental impacts as well as enhancement of the positive impacts and mitigation of the adverse effects.

INSTITUTIONAL AND LEGAL FRAMEWORK

1.      The National Environment Management Authority (NEMA)

The key roles that the National Environment Management Authority (NEMA) is mandated under EMCA to exercise control in respect of sand harvesting are mainly:

a)      Environmental Impact Assessment (EIA) in sand harvesting areas as required under Section 58 and the Second Schedule of EMCA, and granting of such approvals as may be necessary or appropriate EIAs have been conducted as required under Section 42 (1) of EMCA.

b)      Issuing guidelines in consultation with relevant Lead Agencies for the management of the environment in lakes and rivers as required under section 42 (4) EMCA). To this effect the National Sand Harvesting Guidelines (2007) have been issued and rolled out to guide environmental management in sand harvesting sites through public/social effective social organization (formation of Riparian Resource Management Associations - RRMAs) and environmentally sound sand harvesting practices. However the guidelines are not enforceable.

2.      Environmental Impact Assessment (EIA) and Environmental Auditing (EA) for Commercial Sand Harvesting

For any person(s) to be granted an approval to harvest sand an EIA for the river or part of the river must be done and an EIA License issued in accordance with EMCA and the Environmental Impact Assessment and Audit Regulations of 2003.

Consequent Initial and annual Environmental Audits (EAs) must be undertaken for such Approvals granted after the EIA to be renewed every subsequent year.

3.      The National Sand Harvesting Guidelines (NSHG) (2007)

These guidelines have been developed and issued by NEMA in exercise of powers conferred by Section 42(4) of EMCA and provide procedures to streamline sand harvesting activities with a view of making them a sustainable industry that supports economic development for enhanced livelihood while safeguarding the environment.

Key features of the guidelines are:

·         Formation of Riparian Resource Management Associations (RRMAs) which are responsible for sustainable sand harvesting activities in their respective areas,

NOTE: Rivers are national/public resources whose exploitation or management cannot be vested upon an individual, hence the need for the formation of the RRMA. It is the RRMA which, once duly established and registered becomes the legal entity that conducts the EIA and is consequently issued with the EIA License and any necessary approvals.

·         Establishment of Technical Sand Harvesting Committee (TSHC) for every district. Members of the TSHC are appointed from within the membership of the District Environment Committee (DEC) and the TSHC is responsible for proper and sustainable management of sand Harvesting within the district.

·         Provisions for mode and order of removing/ harvesting of sand.

·         Provisions for issuance of Approvals to Harvest sand to RRMAs after an EIA or EA has been conducted, and also issuance of Approvals to Transport Sand – which are issued to transporters. This is done by the respective DECs and TSHCs.

NOTE: NEMA has cancelled the issuance of Approvals to Transport Sand.

4.      The District Environment Committee (DEC)

The DEC, being the Legal instrument established by EMCA at the district level plays the major role in the control of sand harvesting, particularly in:

·         Enforcement for compliance to EMCA, EIA/EA Regulations and the National Sand Harvesting Guidelines (NSHG). Indeed the DEC is responsible for implementation of the NSHG.

·         Monitoring, and providing the necessary advice and directions in sand harvesting.

THE SITUATION

1.    QUANTITY OF SAND HARVESTED OR REMOVED FROM RIVERS IN MACHAKOS

Reliable and accurate statistics on the amount of sand removed from rivers in Lower Eastern is not available. Indeed there has not been specific research to develop this important data and information.

However the following case for Machakos County may provide a picture of the situation.

TABLE SHOWING THE ESTIMATED AMOUNT OF SAND HARVESTED/REMOVED FROM RIVERS IN MACHAKOS COUNTY PER DAY&YEAR FOR COMMERCIAL PURPOSES
DISTRICT	2008		2009		2010		Average Total
	Amount in tons/day	Amount in tons/year	Amount in tons/day	Amount in tons/year	Amount in tons/day	Amount in tons/year	Tons/day	Tons/year
Machakos	90	32,850	120	43,800	180	65,700	130	47,450
Mwala	255	93,000	280	102,200	400	146,000	312	113,733
Yatta	330	120,450	360	131,400	450	144,175	380	132,008
Kathiani & Athi River	95	34,675	135	49,275	210	76,650	147	53,533
Masinga	380	138,700	415	151,475	485	177,025	427	155,733
Kangundo & Matungulu	92	33,580	130	47,450	165	60,225	129	47,085
TOTALS	1,292	453, 255	1,440	525,600	1,890	669,775	1,525	549,542

Note: This data is based on the average number of approximately 10-tonne lorries transporting sand from rivers and other sand containing areas.

2.    COMPLIANCE

There are many sand harvesting sites and groups in Machakos County. Several of these groups are compliant while many are non-compliant due to several factors. The table below gives an overview of compliance status of the known sand harvesting sites in Machakos County.

COMPLIANCE STATUS OF KNOWN SAND HARVESTING SITES IN MACHAKOS

(MACHAKOS, KATHIANI, ATHI RIVER, MATUNGULU, KANGUNDO, MWALA, YATTA AND MASINGA DISTRICTS)

GROUP NAME	LOCATION			COMPLIANCE LEVEL				REMARKS
	District	Division/ Location/ Sub-location	River(s)	EIA	Initial EA	Annual EAs	Approval to Harvest Sand
Inyanzaa Thatha Water Project S.H.G.	Masinga	Kithyoko loc. Thatha and Miangeni S. Locations	Inyanzaa River		Done	Done	Granted 2010	Compliant. Approval cancelled due to wrangles in the SHG and community
Kikamu Sand Harvesting Environmental S.H.G.	Masinga	Kivaa Location,Kaewa and Iiyani Sub locations	Kwanzou, Iuuma,Ngungi		Done	Done	Granted 2010	Compliant
Uwo wa Kathukini S.H.G	Masinga	Muthesya Loc. Kathukini Sub-Location	Masinga Dam, Mataka-Makutano	Done	Not Done	Not done	Granted in 2008 not renewed	Not Compliant Ordered to submit EA by 27/12/2010
Mukalu S.H.G.	Yatta	Mavoloni Loc. Kwandolo Sub Location	Muti & Thika Rivers		Done	Done	Granted 2010	Compliant
Kalamu SHG	Yatta	Mavoloni Loc. Kwandolo Sub Location	Muti & Thika Rivers		Done	Done	Granted 2010	Compliant
KwamamaSHG	Yatta		Nunguni,Kithoni,Kwa Kasunga, Twamyao	-	-	-	Granted on 19/01/2009 .Not renewed	Not Compliant.
Mavoloni Self Help Group	Yatta	Kivaa Sub location	Muli stream,Kalunda mai	-	-	-	Granted 19/01/2009.Not renewed	Not Compliant
Kamukaki Kivaa Environmental Protectors	Yatta		Tulimyumbu-Kithoni rivers.	-	-	-	Granted on 19/01/2009.	Not Compliant
Kamukaki Environment Project SGH	Masinga	Kivaa Location	Iuuma,Itooma,Kwanzou rivers.	-	-	-	Granted on 26/02/2008. Not renewed. Renewed in 2010 on condition of submission of EA.	Not Compliant
Kwomaki Environmental Self Help Group	Masinga	Kangonde Location, Mikuyuni Sub location.	Iuuma/Kiasa	-	-	-	Granted 11/11/2008.Not renewed	Not Compliant
Wamingu Environmental Self Help Group	Masinga	Kangonde Location, Mikuyuni Sub location.	Ngungi/Iuuma	-	-	-	Granted 11/11/2008.Not renewed	Not Compliant
Kikasi Self Help Group	Yatta	Kangonde Location, Kikumini Sub location	Iuuma	-	-	-	Granted 11/11/2008.Not renewed	Not Compliant
Kangusi Self Help Group	Masinga	Kangonde Location, Kikumini Sub location	Iuuma	-	-	-	Granted 11/11/2008.Not renewed	Not Compliant
Kandamasi Water Project SHG	Masinga	Kangonde Location	Iuuma river	-	-	-	Granted 05/11/2008.Not renewed.	Not Compliant
Kikumini Sublocation SHG	Masinga	Kangonde Location	Iuuma river	-	-	-	Granted 05/11/2008.Not renewed.	Not Compliant
Eendei/Miangeni Soil & Water Conservation	Masinga	Kithyoko Location,Eendei Sub location	Mukengesya	-	-	-	Granted 12/03/2008.Not renewed,	Not Compliant.
Athi River Sand Sellers	Yatta	Kithimani Location	Athi River Kwa Koko	-	-	-	Granted 05/11/2008.Not renewed.	Not Compliant
Kisaani & Kiseuni Soil& Water Conservation SHG	Masinga		Yiuuma,Itooma,Mukaa	-	-	-	Granted 26/02/2008.Not renewed.	Not Compliant
Kalenga Self Help Group	Mwala	Mbiuni Location	Kalenga river	-	-	-	Granted  19/01/2009.Not renewed.	Not Compliant
Kama Athi Youth Self Help Group	Mwala	Mbuini Location, Mumbuni Sub location	Nditha river	-	-	-	Granted 19/01/2009. Not renewed.	Not compliant
Kiluluini Youth Self Help Group	Mwala	Mbuini Location	Nditha River	-	-	-	Granted  19/01/2009.Not renewed.	Not Compliant
Pamoja Youth Self Help Group	Mwala	Mbuini Location, Mumbuni Sub location	Kiliva River	-	-	-	Granted  19/01/2009.Not renewed.	Not Compliant
Athi River Youth Group	Mwala	Mbuini Location, Kabaa Sublocation	Nditha River	-	-	-	Granted  19/01/2009.Not renewed.	Not Compliant
Nyaanyaa Youth Group	Mwala	Mbuini Location, Nyaanyaa Sub location	Kiliva	-	-	-	Granted  19/01/2009.Not renewed.	Not Compliant
Festus Muema Wambua	Machakos	Kiimakimwe Location,Katoloni Sub Location	Mwania ,Mbiliini river	-	-	-	Granted 12/10/2007.Not renewed.	Not Compliant
Kamweani Sand Harvesters	Yatta	Kithimani Loc. Kithimani Sub Location	River Athi	-	Done 2010	N/A	Not granted	Not Compliant
Muthini Kitoo Kitavi	Mwala	Mbiuni Location Makiliva Sub-Location	Kiliva
Kithimani Environmental Conservation Welfare Group	Machakos	Mua Hills Location,Mua Hills Sublocation	Kwa Kisese Community Dam	Not Apllicable	Not Applicable	Not Applicable	Granted For 3 months in 2010. Now expired	Community had requested for approval to sell sand while de-silting community dam.
Kyanda Soil Conservation SHG	Machakos	Mua Hills Location,Kyanda Sub Location	Kwa Kosa Community Dam	Not Apllicable	Not Apllicable	Not Apllicable	Granted For 3 months in 2010. Now expired	Community had requested for approval to sell sand while de-silting community dam.
Kivingoni Sub Location Sand Harvesters and Environmental Protectors SHG	Yatta		Mbembani river (Nduvu, Ngalatu, Katenthoni				Approval granted on 06/08/1997 and cancelled on 15/08/2007 Approval again granted 20/04/2009.Not renewed.	Non Compliant
Kithyolo SHG	Yatta	Kivinooni SubLocation,Ndalani  location	River Thika,Nduvu River,Kivuthu River	-	-	-	Granted on 13/10/2009.Not renewed	Not Compliant
Wasya Wa Kanyuuku SHG	Yatta	Mavoloni Location,Kwa Ndolo Sub location	Thika river, Mbanda	-	-	-	Granted on 21/09/2009. Not renewed.	Not Compliant.
Kathukini Sublocational Community SHG	Masinga	Ndithini Division, Muthesya Location	Thika river along Masinga Dam	-	-	-	Granted on 23/07/2009.Not renewed	Not Compliant
Nthumulo Sand Harvesters SHG	Yatta	Mavoloni Location, Kwa Ndolo Sub location	Thika river		Done	Done	Granted 2010	Compliant
Bongo Environmental Project SHG	Masinga	Kangonde Location, Kangonde Sub location	Tulimyumbu river,Kwaingulu,Ngomeni and Kwa Suvu Streams	-	-	-	Granted 04/05/2009	Not Compliant
Mkima Environmental Conservation SHG	Masinga	Masinga Location,	Tulimyumbu river,Thila,Mkusu,Mathauta rivers.
Muki SHG	Masinga	Kivaa Location	Tulimyumbu river	-	-	-	Not granted	Any activity are illegal
Kangonde Kivaa Sand Harvesters	Masinga	Kivaa Location	Iuuma,Ngungi,Kaewa,Kisauni	-	-	-	Not granted	Any activity is illegal
Kikau SHG	Masinga	Kangonde Location, Kikumini Sub location.	Iuuma	-	-	-	Granted 11/11/2008.Not renewed.	Not Compliant
Itooma Kwa Kilungu Soil and Water Conservation SHG	Masinga	Kivaa Location,Kaewa sub location	Itooma river	-	-	-	-	Any activity Illegal

AREAS WHERE UNCONTROLLED SAND HARVESTING IS TAKING PLACE

Area	District(s)	River(s)	Remarks
Miseleni/Kathama	Mwala	Kalala etc	No known riparian groups
Thwake river between Kangundo-Kathiani road bridge to Machakos-Kitui road bridge	Mwala, Kathiani, Kangundo	Thwake	No known riparian groups
Miu River (Kitwii-Kivaani area)	Kangondo	Miu River	No known riparian groups
Mutituni/ Mungala/Mumbuni area	Mahakos	Miwongoni river, Various streams	No known riparian groups
Muooni dam and surrounding areas	Kathiani	Muooni	No known riparian groups
Masii	Mwala	Various rivers/ streams	No known riparian groups

Note: There are other groups/sites which are undergoing the EIA process.

NON COMPLIANCE

From the table above it is evident there is serious non-compliance to sand harvesting at the known sites and groups. This is mainly due to:

§  Most of these groups, once formed and known or licensed either disintegrated or were mismanaged so that there was no continuity to sustain compliance. Monitoring for enforcement is also constrained under such circumstances since getting the responsible persons may not be possible.

§  Despite the above, groups of individuals from  such  community groups continue to harvest sand from these sites under the cover of the disintegrated/non-operational groups.

§  Inability to afford the cost of compliance by the riparian communities: Cost of EIAs and EAs

§  The non-compliant groups operate under cover. This presents an enforcement challenge as it calls for stringent and all-round surveillance to apprehend and prevent their activities.

§  While some of these groups have already undertaken EIAs, the EIAs have not yet been approved mainly due pending issues. Most of the pending issues are mainly objections against the proponent group and these arise out of the same communities out of which the group has been formed.

§  Reports have also been variously received about sand harvesting from other sites by unknown groups. Where such perpetrators are not apprehended immediately they are found it is difficult to get them during the normal monitoring activities. This again calls for sustained surveillance.

CHALLENGES

Since the enactment of EMCA and the roll out of Sand Harvesting Guidelines there has been considerable success in bringing control to sand harvesting activities, including the creation and enhancement of environmental awareness among the public/ Lead Agencies and other stakeholders. However there have been some challenges that are facing the control of sand harvesting, which include:

       I.            Enforceability of the National Sand Harvesting Guidelines. The guidelines provide a very useful and practical tool for controlling sand harvesting including the establishment of appropriate Legal Entities (RRMAs) and appropriate sand harvesting and transportation practices. It is these guidelines that form the basis for implementation of the EIA process in respect of sand harvesting in rivers since the EIA must be undertaken by a RRMA of a specific river/area. However the guidelines are not enforceable in law, leaving the formation of such RRMAs and other environmental management tools as voluntary. Although the District Environment Committees have their roles in implementing the guidelines the fact that they are not enforceable presents a major challenge.

    II.            In-coherent Social Organization among communities in sand harvesting areas. Rivers are public/national resources sand harvesting may only be appropriately vested on the public-oriented groups (RRMAs) as set out under the Sand Harvesting guidelines (which are not enforceable). Failure by the communities in areas endowed with sand to form coherent groups that can provide a framework for implementation of Environmental Management Plans (EMPs) and other environmentally sound practices makes it difficult to achieve the management goals. This is one of the major factors leading to uncontrolled and environmentally destructive sand harvesting.

INTERVENTIONARY MEASURES

The following measures are hereby proposed to address issues of sand harvesting in Masinga and the larger Machakos County:

A.    Social and Community mobilization to establish viable and Coercive community based organizations to manage the economically and environmentally sustainable sand harvesting organizations. This will enhance compliance and benefit sharing among community members and reduce conflicts of interest among different sections of the communities.

B.     Financial assistance to community groups to meet the cost of compliance and Enforcement on sand harvesting (EIA, EA, Capacity building, surveillance, monitoring). This may be sourced from devolved public funds such as the Constituency Development Fund (CDF), Local Authority Transfer Fund (LATIF), County Council Revenues, etc.

C.    Gazettement of the DECs where in districts where they do not exist (if applicable under the current legislative dispensation).

D.   Capacity building of NEMA’s institutional framework in the counties (County Government) by enhancing of human resource capacity for the County Offices to enhance surveillance, monitoring for compliance and precision in addressing sand harvesting issues.

E.    Investigation, apprehension and prosecution  of illegal groups including cartels and individuals involved.

F.     Upgrading of the National Sand Harvesting Guidelines to an enforceable regulation or law.

G.   As an immediate measure: Launch a 3-month crack down by the NEMA Police Unit (NEPU) to apprehend and prosecute illegal sand harvesters.