a. Whether the 1st Respondent, the Cabinet Secretary Ministry of Mining, has the power to grant export permits:
58.The Petitioner answers the above issue in the negative. To it, the power is bestowed upon the Director of Mines whereas the Cabinet Secretary reserves the administrative duty to only sign the export licences once granted by the Director of Mines.
59.The Respondents hold the converse position.
60.It is the position that the dispute is hinged on the provisions of Section 171 of the Mining Act and Regulation 20 of the Mining (Dealing in Minerals) Regulations, 2017.
61.In order to deal with the issue with ease, a reproduction of the above provisions becomes necessary, and as follows: -Section 117:Export of minerals:1.A person shall not export a mineral otherwise than in accordance with an export permit granted by the Cabinet Secretary.(2)The holder of—(a)a mineral right;(b)a mineral dealer's licence; or(c)a diamond dealer's licence,may apply to the Director of Mines for an export permit in the prescribed form.3.The grant of an export permit to a person in accordance with this Act shall not exempt the person from an obligation to comply with the requirements of any other law relating to the export of minerals.4.Where diamonds are exported pursuant to a permit issued under this section, such export shall conform to the international best practices.(5)The Cabinet Secretary may make Regulations to govern value addition on minerals.
62.Regulation 20 of the Mining (Dealing in Minerals) Regulations, 2017 provides as follows: -20.Application for an export permit:(1)Subject to Section 171(2) of the Act, an application for the grant of an export permit shall be made to the Director of Mines by completing Form EP 1 as set out in the Second Schedule.(2)Every export or shipment of a mineral shall require an export permit.(3)The application shall include the following—(a)the name, source, quantity, grade and value of the mineral to be shipped or exported;(b)the name, address of the purchaser or consignee and destination where the mineral is to be shipped or exported;(c)the sales or marketing agreement between the applicant and the buyer if any;(d)a refining contract or off-take agreement where the applicant has signed such an agreement; and(e)the royalty liability for that consignment.(4)An export permit shall be signed by the Cabinet Secretary or an officer authorised by the Cabinet Secretary.
63.The above two provisions set the legal stage upon which applications for export permits may be made and granted. Section 117(1) of the Mining Act vests the power to grant an export permit on the Cabinet Secretary.
64.Regulation 20 of the Mining (Dealing in Minerals) Regulations, 2017 provides the procedure in application for the grant of an export permit. The application is to be made to the Director of Mines by completing Form EP 1 as set out in the Second Schedule.
65.Therefore, an Applicant for an export licence must begin with an application to the Director of Mines. The application must be accompanied by the requirements in Regulation 20(3).
66.It is, then, the Cabinet Secretary who finally rests with the discretion to grant the licence. The regulation requiring the application to be lodged to the Director of Mines does not ipso facto accord the Director of Mines the power to grant the licence. The power to grant the licence is statutorily anchored on the Cabinet Secretary under Section 117 of the Mining Act. The Mining (Dealing in Minerals) Regulations, being a subsidiary legislation cannot, therefore, override the parent statute.
67.The Petitioner’s contention that it is the Director of Mines who is to grant the export licence and not the Cabinet Secretary, therefore, lacks any legal leg to stand on. It is for rejection.
68.The issue is, hence, answered in the affirmative. The Court will now consider the next issue.
b. Whether the impugned directive contravene Article 47 of the Constitution for want of conformity with lawfulness, reasonableness and procedural fairness:
69.Regulation 20(3) of the Mining (Dealing in Minerals) Regulations, 2017 gives the contents of the application for the licence. The provision uses the words ‘shall include’ thereby meaning that the listed requirements are not exhaustive.
70.As a recap, the requirements under Regulation 20(3) are as follows: -(a)the name, source, quantity, grade and value of the mineral to be shipped or exported;(b)the name, address of the purchaser or consignee and destination where the mineral is to be shipped or exported;(c)the sales or marketing agreement between the applicant and the buyer if any;(d)a refining contract or off-take agreement where the applicant has signed such an agreement; and(e)the royalty liability for that consignment.
71.The impugned directive introduced the following further requirements to accompany an application for an export licence: -i.An Inspection Report from Mineral Audit and a Geologist from the Department of Geological Survey;ii.That no application would be considered without an inspection report;iii.That the weight and market value arrived at in the expert opinion of the inspections;iv.That there be photographic evidence of minerals being exported and computation of royalty payable.
72.Responding to the contention that the Cabinet Secretary did not act within the calling under Article 47 of the Constitution in coming up with the additional requirements, the Respondents argued that the additional requirements were merely internal administrative directions which did not require public engagement.
73.To ascertain if the Respondents position is holding, this Court will look at Article 47 of the Constitution in discussing the constitutional doctrine of public participation.
74.The High Court in Mombasa High Court Constitutional Petition No. 159 of 2018 consolidated with Constitutional Petition No. 201 of 2019 William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) (2020) eKLR comprehensively dealt with the issue of public participation and in light of Article 10 of the Constitution. The Court stated as follows: -116.Article 10 provides for the national values and principles of governance which bind all State organs, State officers, public officers and all persons whenever any of them applies or interprets the Constitution, enacts, applies or interprets any law or makes or implements any public policy decisions.117.The Constitution also provided for alignment of the laws then in force at its promulgation. Section 7(1) of the Sixth Schedule states as follows: -118.Expounding on Article 10 of the Constitution, the Court of Appeal in Independent Electoral and Boundaries Commission (IEBC) v National Super Alliance (NASA) Kenya & 6 Others, Civil Appeal No. 224 of 2017;  eKLR held that:119.Courts have also dealt with the concepts of public participation and stakeholders’ consultation or engagement. The High Court in Robert N. Gakuru & Others vs. Governor Kiambu County & 3 Others  eKLR while referring to the South African decision in Doctors for Life International vs. Speaker of the National Assembly & Others (CCT12/05)  ZACC 11; 2006 (12) BCLR 1399 (cc); 2006(6) SA 416 (CC) adopted the following definition of public participation: -120.Public participation therefore refers to the processes of engaging the public or a representative sector while developing laws and formulating policies that affect them. The processes may take different forms. At times it may include consultations. The Black’s Law Dictionary 10th Edition defines ‘consultation’ as follows: -121.Consultation is, hence, a more robust and pointed approach towards involving a target group. It is often referred to as stakeholders’ engagement. Speaking on consultation the Court of Appeal in Legal Advice Centre & 2 others v County Government of Mombasa & 4 others  eKLR quoted with approval Ngcobo J in Matatiele Municipality and Others vs. President of the Republic of South Africa and Others (2) (CCT73/05A)  ZACC 12; 2007 (1) BCLR 47 (CC) as follows: -122.In a Three-Judge bench the High Court in consolidated Constitutional Petition Nos. 305 of 2012, 34 of 2013 and 12 of 2014 (Formerly Nairobi Constitutional Petition 43 of 2014) Mui Coal Basin Local Community & 15 Others v Permanent Secretary Ministry of Energy & 17 Others  eKLR the Court addressed the concept of consultation in the following manner: -123.Consultation or stakeholders’ engagement tends to give more latitude to key sector stakeholders in a given field to take part in the process towards making laws or formulation of administrative decisions which to a large extent impact on them. That is because such key stakeholders are mostly affected by the law, policy or decision in a profound way. Therefore, in appropriate instances a Government agency or a public officer undertaking public participation may have to consider incorporating the aspect of consultation or stakeholders’ engagement.124.The importance of public participation cannot be gainsaid. The Court of Appeal in Legal Advice Centre & 2 others v County Government of Mombasa & 4 others (supra) while dealing with the aspect of public participation in lawmaking process stated as followed: -125.In Matatiele Municipality v President of the Republic of South Africa (2) (CCT73/05A), the South African Constitutional Court stated as follows: -126.The South African Constitutional Court in Poverty Alleviation Network & Others v President of the Republic of South Africa & 19 others, CCT 86/08  ZACC 5 discussed the importance of public participation as follows: -127.Facilitation of public participation is key in ensuring legitimacy of the law, decision or policy reached. On the threshold of public participation, the Court of Appeal in Legal Advice Centre & 2 others v County Government of Mombasa & 4 others (supra) referred to Independent Electoral and Boundaries Commission (IEBC) vs. National Super Alliance (NASA) Kenya & 6 others  eKLR stated as follows: -128.In Mui Coal Basin Local Community & 15 Others v Permanent Secretary Ministry of Energy & 17 Others (supra) the Court enumerated the following practical principles in ascertaining whether a reasonable threshold was reached in facilitating public participation: -a.First, it is incumbent upon the government agency or public official involved to fashion a programme of public participation that accords with the nature of the subject matter. It is the government agency or Public Official who is to craft the modalities of public participation but in so doing the government agency or Public Official must take into account both the quantity and quality of the governed to participate in their own governance. Yet the government agency enjoys some considerable measure of discretion in fashioning those modalities.b.Second, public participation calls for innovation and malleability depending on the nature of the subject matter, culture, logistical constraints, and so forth. In other words, no single regime or programme of public participation can be prescribed and the Courts will not use any litmus test to determine if public participation has been achieved or not. The only test the Courts use is one of effectiveness. A variety of mechanisms may be used to achieve public participation.c.Third, whatever programme of public participation is fashioned, it must include access to and dissemination of relevant information. See Republic vs The Attorney General & Another ex parte Hon. Francis Chachu Ganya (JR Misc. App. No. 374 of 2012. In relevant portion, the Court stated:d.Fourth, public participation does not dictate that everyone must give their views on the issue at hand. To have such a standard would be to give a virtual veto power to each individual in the community to determine community collective affairs. A public participation programme, must, however, show intentional inclusivity and diversity. Any clear and intentional attempts to keep out bona fide stakeholders would render the public participation programme ineffective and illegal by definition. In determining inclusivity in the design of a public participation regime, the government agency or Public Official must take into account the subsidiarity principle: those most affected by a policy, legislation or action must have a bigger say in that policy, legislation or action and their views must be more deliberately sought and taken into account.e.Fifth, the right of public participation does not guarantee that each individual’s views will be taken as controlling; the right is one to represent one’s views – not a duty of the agency to accept the view given as dispositive. However, there is a duty for the government agency or Public Official involved to take into consideration, in good faith, all the views received as part of public participation programme. The government agency or Public Official cannot merely be going through the motions or engaging in democratic theatre so as to tick the Constitutional box.f.Sixthly, the right of public participation is not meant to usurp the technical or democratic role of the office holders but to cross-fertilize and enrich their views with the views of those who will be most affected by the decision or policy at hand.
75.The Court in William Odhiambo Ramogi & 3 Others vs. The Attorney General & Others case (supra) further dealt with the instances in which a State corporation requires to undertake public engagement and those instances which do not call for such. The Court defined the requisite threshold as follows: -133.The manner in which a public body exercises its statutory powers is largely dependent on the resultant effect. This yields two scenarios. The first scenario is when the exercise of the statutory authority only impacts on the normal and ordinary day-to-day operations of the entity. We shall refer to such as the ‘internal operational decisions concept’. The second scenario is when the effect of the exercise of the statutory power transcends the borders of the entity into the arena of, and has a significant effect on the major sector players, stakeholders and/or the public.134.Subjecting the first scenario to public participation is undesirable and will, without a doubt, result to more harm than any intended good. The harm is that public entities will be unable to carry out their functions efficiently as they will be entangled in public participation processes in respect to all their operational decisions. It would likely be impossible for any public entity to satisfactorily discharge its mandate in such circumstances. As long as a decision deals with the internal day-to-day operations of the entity such a decision need not be subjected to public engagement.135.The issue is not foreign to our Courts. In Commission for Human Rights & Justice v Board of Directors, Kenya Ports Authority & 2 Others; Dock Workers Union (Interested Party)  eKLR, the Petitioner claimed that public participation was ignored in the recruitment of the Managing Director of Kenya Ports Authority. In a rejoinder, the Respondents argued that Section 5(1) of the KPA Act mandated the Kenya Ports Authority to appoint the Managing Director. They further argued that Boards of Directors of State corporations are independent and that their decisions are only fettered by the law. It was also argued that public participation had been conducted through representation of board members who were involved in the recruitment process. Rika, J, expressed himself as follows:136.We agree with the Learned Judge. We further find that requiring an entity to subject its internal operational decisions to public participation is unreasonable. It is a tall order which shall definitely forestall the operations of such entity. That could not have, by any standard, been the constitutional desired-effect under Articles 10 and 47.137.While, as aforesaid, it is imprudent to subject internal operational decisions of a public body to the public policy requirement of Article 10 of the Constitution, the opposite is true of decisions involved in the second scenario: these are operational decisions whose effect transcends the borders of the public body or agency into the arena of, and has a significant effect on the major sector players, stakeholders and/or the public. There is, clearly, ample justification in subjecting the exercise of the statutory power in this scenario to public participation. The primary reason is that the resultant decisions have significant impact on the public and/or stakeholders.
76.Whereas the decision in William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) (2020) eKLR dealt with a state corporation exercising statutory power, the threshold adopted by the Court apply in the circumstances of this case and in equal measure. In other words, a decision taken in exercise of executive authority may have to be subjected to public participation or not depending on its resultant effect.
77.As held in the above case, if the decision ‘only impacts on the normal and ordinary day-to-day operations of the entity……subjecting …. to public participation is undesirable and will, without a doubt, result to more harm than any intended good. The harm is that public entities will be unable to carry out their functions efficiently as they will be entangled in public participation processes in respect to all their operational decisions. It would likely be impossible for any public entity to satisfactorily discharge its mandate in such circumstances. As long as a decision deals with the internal day-to-day operations of the entity such a decision need not be subjected to public engagement.’
78.The converse is also correct. As held ‘the opposite is true of decisions involved in the second scenario: these are operational decisions whose effect transcends the borders of the public body or agency into the arena of, and has a significant effect on the major sector players, stakeholders and/or the public. There is, clearly, ample justification in subjecting the exercise of the statutory power in this scenario to public participation. The primary reason is that the resultant decisions have significant impact on the public and/or stakeholders.’
79.Returning to the matter at hand, this Court notes that the Mining (Dealing in Minerals) Regulations, 2017 is a subsidiary legislation. Such must have gone through the extensive process of public participation and Parliamentary approval as contained in the Statutory Instruments Act, No. 23 of 2013 prior to enactment.
80.Parliament was very deliberate in using the words ‘shall include’ in Regulation 20(3) of the Mining (Dealing in Minerals) Regulations, 2017. That connotes further that there may be some further requirements that may be added to the originally approved ones. However, such requirements can only be those which ‘only impacts on the normal and ordinary day-to-day operations of the entity’, if they are not to attract public engagement. To the contrary, if the further requirements ‘are operational decisions whose effect transcends the borders of the public body or agency into the arena of, and has a significant effect on the major sector players, stakeholders and/or the public’, then such call for public engagement.
81.The question which now begs for an answer is under which category do the additional requirements in the impugned directive fall. There is no doubt that the impugned additional requirements affect the Applicants for the export licence. The Applicants are to incur further expenses in a bid to comply with the additional requirements raised in the impugned directive. Such additional requirements, therefore, ‘are operational decisions whose effect transcends the borders of the public body or agency into the arena of, and has a significant effect on the major sector players, stakeholders and/or the public’.
82.It, hence, turns out that whereas the Cabinet Secretary has a window to add into the requirements for application for export licences, the addition must be limited to only such additions that are purely operational decisions whose effect does not transcend the borders of the public body or agency into the arena of, and have significant effect on the major sector players, stakeholders and/or the public. Such should be those that aid the institution to carry out its normal and ordinary day to day operations and no more.
83.In this case, therefore, the additional requirements in the impugned directive are caught up by want of compliance with Articles 10 and 47 of the Constitution on public engagement.
84.Article 47 of the Constitution states as follows: -1.Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.2.If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.3.Parliament shall enact legislation to give effect to the rights in clause (1) and that legislation shall—a.provide for the review of administrative action by a Court or, if appropriate, an independent and impartial tribunal; andb.promote efficient administration.
85.The legislation that was contemplated under Article 47(3) is the Fair Administrative Actions Act. Section 5(1) thereof provides that: -(1)In any case where any proposed administrative action is likely to materially and adversely affect the legal rights or interests of a group of persons or the general public, an administrator shall—a.issue a public notice of the proposed administrative action inviting public views in that regard;b.consider all views submitted in relation to the matter before taking the administrative action;c.consider all relevant and materials facts; andd.where the administrator proceeds to take the administrative action proposed in the notice—i.give reasons for the decision of administrative action as taken;ii.issue a public notice specifying the internal mechanism available to the persons directly or indirectly affected by his or her action to appeal; andiii.specify the manner and period within which such appeal shall be lodged.
86.Section 2 of the Fair Administrative Act defines an ‘administrative action’ and an ‘administrator’ as follows: -
87.Addressing itself to these provisions, the Court of Appeal in Civil Appeal 52of 2014 Judicial Service Commission vs. Mbalu Mutava & Another (2015)eKLR held that: -
88.The South African Constitutional Court in President of the Republic of South Africa and Others vs. South African Rugby Football Union and Others CCT16/98) 2000 (1) SA 1 ring-fenced the importance of fair administrative action as a constitutional right. The Court while referring to Section 33 of the South African Constitution which is similar to Article 47 of the Kenyan Constitution stated as follows: -
89.The High Court in Republic v Fazul Mahamed & 3 Others ex-parte Okiya Omtatah Okoiti  eKLR had the following to say: -25.In John Wachiuri T/A Githakwa Graceland & Wandumbi Bar & 50 Others vs The County Government of Nyeri & Ano the Court emphasized that there are three categories of public law wrongs which are commonly used in cases of this nature.These are: -a.Illegality- Decision makers must understand the law that regulates them. If they fail to follow the law properly, their decision, action or failure to act will be "illegal". Thus, an action or decision may be illegal on the basis that the public body has no power to take that action or decision, or has acted beyond it powers.b.Fairness- Fairness demands that a public body should never act so unfairly that it amounts to abuse of power. This means that if there are express procedures laid down by legislation that it must follow in order to reach a decision, it must follow them and it must not be in breach of the rules of natural justice. The body must act impartially, there must be fair hearing before a decision is reached.c.Irrationality and proportionality- The Courts must intervene to quash a decision if they consider it to be demonstrably unreasonable as to constitute 'irrationality" or 'perversity' on the part of the decision maker. The benchmark decision on this principle of judicial review was made as long ago as 1948 in the celebrated decision of Lord Green in Associated Provincial Picture Houses Ltd vs Wednesbury Corporation: -
90.From the foregoing discussion, there is no doubt that the impugned directive is an administrative action. In sum, it is an administrative action because it affects the legal rights and interests of the Applicants for export licences. As such the directive had to pass the constitutional and statutory tests of lawfulness, reasonableness and procedural fairness.
91.The impugned directive did not conform to the requirements of Article 47 of the Constitution and Fair Administrative Actions Act as far the additional requirements are concerned. At a minimum, to meet the constitutional and statutory threshold, the Respondents had to do the following: -a.Give notice of the intended directives to the public;b.Afford an opportunity for the public to be heard on the question; andc.Give reasons for the decisions made – in this case, the impugned directive.
92.None of these happened. For this reason alone, the impugned directive is constitutionally infirm.