Natural Resources (Classes of Transactions Subject to Ratification) Act

This Act may be cited as the Natural Resources (Classes of Transactions Subject to Ratification) Act.

Jurisdiction: Kenya
Instrument: Act or statute
Citation: Cap. 387B
Version: 31 Dec 2022
Language: en
Official source: View official record ↗

Source attribution: Source: Kenya Law

Statute overview

About this statute

This Act may be cited as the Natural Resources (Classes of Transactions Subject to Ratification) Act. This section provides definitions for terms used in the Act, including "concession", "Cabinet Secretary", "days", "effective date", "exploitation", "grantor", "natural resources", "permit", "state organ", and "transaction". Section 3 identifies transactions that are covered: (1)(a) the grant of a right or concession by or on behalf of any person to another person for exploiting a natural resource of Kenya; (1)(b) transactions designated as subject to ratification by section 4; (2)(a) lists national government, county government, state organs and county government entities; and (2)(b) covers grants of rights or concessions by private persons when required to be ratified by Parliament. The classes of transactions set out in the Schedule must be ratified by Parliament pursuant to Article 71 of the Constitution. The National Assembly must consider agreements within 30 days of submission and forward its resolution to the Senate; if the National Assembly fails to forward its resolution within 30 days, the Senate must begin consideration and forward its resolution to the National Assembly.

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Provisions of Natural Resources (Classes of Transactions Subject to Ratification) Act

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Part I

PRELIMINARY

1
PRELIMINARY - 1. Short title
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This Act may be cited as the Natural Resources (Classes of Transactions Subject to Ratification) Act.

Section 1. Short title Section This Act may be cited as the Natural Resources (Classes of Transactions Subject to Ratification) Act.
2
PRELIMINARY - 2. Interpretation
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This section provides definitions for terms used in the Act, including "concession", "Cabinet Secretary", "days", "effective date", "exploitation", "grantor", "natural resources", "permit", "state organ", and "transaction".

Section 2. Interpretation Section In this Act, unless the context otherwise requires— "concession" means the right to exploit a natural resource pursuant to an agreement between the grantor and the beneficiary or a permit issued under national or county legislation; "Cabinet Secretary" means the Cabinet Secretary for the time being responsible for matters relating to environment; "days" means calendar days; "effective date" has the meaning assigned to it in Article 260 of the Constitution; "exploitation" means an activity that confers or is aimed at conferring a benefit on the beneficiary of the grant of the concession or right but does not include an activity that is exploratory in nature; "grantor" means the person who or which under an agreement relating to natural resources has granted to another the concession or right to exploit a natural resource of Kenya; "natural resources" has the meaning assigned to it in Article 260 of the Constitution; "permit" includes a licence or other authorization validly issued under national or county legislation; "state organ" has the meaning assigned to it in Article 260 of the Constitution; and "transaction" means an arrangement or other dealing between a grantor and a beneficiary under which the beneficiary lawfully acquires a concession or a right to exploit a natural resource of Kenya.
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PRELIMINARY - 3. Application
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Section 3 identifies transactions that are covered: (1)(a) the grant of a right or concession by or on behalf of any person to another person for exploiting a natural resource of Kenya; (1)(b) transactions designated as subject to ratification by section 4; (2)(a) lists national government, county government, state organs and county government entities; and (2)(b) covers grants of rights or concessions by private persons when required to be ratified by Parliament.

Section 3. Application Section 3(1)(a) involves the grant of a right or concession by or on behalf of any person to another person for the exploitation of a natural resource of Kenya; and Section 3(1)(b) falls within the class of transactions designated as subject to ratification by section 4 of this Act. Section 3(2)(a) national government, county government, state organ and all county government entities; and Section 3(2)(b) grant of a right or a concession by a private person in cases in which such transaction is required by this Act to be ratified by Parliament.

Part II

CLASSES OF TRANSACTIONS

4
CLASSES OF TRANSACTIONS - 4. Classes of Transactions
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The classes of transactions set out in the Schedule must be ratified by Parliament pursuant to Article 71 of the Constitution.

Section 4. Classes of Transactions Section 4(1) The classes of transactions set out in the Schedule are subject to ratification by Parliament pursuant to Article 71 of the Constitution. Section 4(2)(a) subject to paragraph (e), the grant of a concession or right to exploit a natural resource through a permit, licence or other authorization issued in accordance with the requirements of national or county government legislation; Section 4(2)(b) the grant of a concession or right by a private person to exploit a natural resource through an agreement or a contract; Section 4(2)(c) the grant of a concession or right to exploit a natural resource for scientific research, educational or other non-commercial purposes unless the exploitation involves taking the natural resource or an portion of it outside of the jurisdiction of Kenya; Section 4(2)(d) the exploitation of a natural resource by a Kenyan national for subsistence purposes in circumstances in which the law does not require that a permit, licence or other authorization be obtained; and Section 4(2)(e) the exploitation of a natural resource in quantities falling below a threshold prescribed by the Cabinet Secretary by notice in the Gazette or below a threshold specified in the Schedule to the Act.

Part III

SUBMISSION OF AGREEMENTS TO PARLIAMENT

10
SUBMISSION OF AGREEMENTS TO PARLIAMENT - 10. Procedure for approval by Parliament
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The National Assembly must consider agreements within 30 days of submission and forward its resolution to the Senate; if the National Assembly fails to forward its resolution within 30 days, the Senate must begin consideration and forward its resolution to the National Assembly.

Section 10. Procedure for approval by Parliament Section 10(1) The process of approval of an agreement shall commence in the National Assembly. Section 10(2) The National Assembly shall consider an agreement within thirty days of its submission to the National Assembly and shall forward its resolution to the Senate for consideration. Section 10(3) If within thirty days of submission of an agreement to the National Assembly, the National Assembly has not forwarded its resolution on the agreement to the Senate, the Senate shall commence its consideration of the agreement and shall forward its resolution to the National Assembly. Section 10(4)(a) approve the ratification of an agreement; or Section 10(4)(b) do not approve the ratification of an agreement;
11
SUBMISSION OF AGREEMENTS TO PARLIAMENT - 11. Procedure in case of different resolutions
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If the two Houses of Parliament disagree on ratifying a transaction, the issue is to be handled under Articles 112 and 113 of the Constitution and the Houses' Standing Orders; if a mediation committee is formed, the period for considering the agreement is extended by thirty days.

Section 11. Procedure in case of different resolutions Section 11(1) Where one House of Parliament resolves to ratify the transaction but the other House resolves not to ratify the transaction, the matter shall be dealt with in accordance with the procedures and mechanisms provided in Articles 112 and 113 of the Constitution and the relevant Standing Orders of both Houses. Section 11(2) Where a mediation committee is constituted under subsection (1), the period for dealing with the agreement shall be extended by thirty days.
5
SUBMISSION OF AGREEMENTS TO PARLIAMENT - 5. Submission of agreement to Cabinet Secretary
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A beneficiary must submit the agreement evidencing a transaction to the Cabinet Secretary responsible for the relevant natural resource as soon as practicable and no later than fourteen days after entering the transaction.

Section 5. Submission of agreement to Cabinet Secretary Section 5(1) As soon as practicable, but not later than fourteen days after entering into a transaction, a beneficiary shall submit an agreement or other instrument evidencing the transaction to the Cabinet Secretary responsible for the natural resource that is the subject of the transaction. Section 5(2) The agreement shall be accompanied by a memorandum in the prescribed form.
6
SUBMISSION OF AGREEMENTS TO PARLIAMENT - 6. Submission of agreement to Parliament
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The Cabinet Secretary responsible for the natural resource must, within seven days of receiving the agreement and the memorandum, submit them to Parliament for ratification.

Section 6. Submission of agreement to Parliament Section Within seven days of receiving the agreement and the memorandum, the Cabinet Secretary responsible for the natural resource that is the subject of the transaction shall submit the agreement and memorandum to Parliament for ratification in terms of Article 71 of the Constitution.
7
SUBMISSION OF AGREEMENTS TO PARLIAMENT - 7. Validity of agreements
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Transactions that require parliamentary ratification take effect only after Parliament ratifies them; if Parliament declines ratification the transaction is null and void. Public officers must not give effect to transactions that have not been ratified.

Section 7. Validity of agreements Section 7(1) A transaction which under this Act, is subject to ratification by Parliament shall only be effective once it is ratified, and where Parliament has declined to ratify any transaction under this Act, the transaction shall be null and void. Section 7(2) A public officer shall not give effect to or otherwise take cognisance of a transaction subject to ratification under this Act which has not been ratified in accordance with this Act.
8
SUBMISSION OF AGREEMENTS TO PARLIAMENT - 8. Consideration by Parliament
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Parliament must deal with any agreement submitted to it under this Act within sixty days and following the laid down procedures.

Section 8. Consideration by Parliament Section Parliament shall deal with any agreement submitted to it under this Act within sixty days of receiving such agreement in accordance with the laid down procedures.
9
SUBMISSION OF AGREEMENTS TO PARLIAMENT - 9. Relevant considerations on transactions subject to ratification
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Consider the applicable Government policy when assessing transactions subject to ratification.

Section 9. Relevant considerations on transactions subject to ratification Section the applicable Government policy;

Part IV

ADMINISTRATIVE ARRANGEMENTS

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ADMINISTRATIVE ARRANGEMENTS - 12. Register of transactions
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The Cabinet Secretary must create and keep a central electronic register of ratified natural resource agreements; the public may inspect it free and may obtain authenticated printouts for a reasonable fee; the Cabinet Secretary must publish an annual summary report.

Section 12. Register of transactions Section 12(1) The Cabinet Secretary shall establish and maintain a central register of agreements relating to natural resources and other transactions which have been ratified as provided under this Act. Section 12(2) The Register shall be maintained in electronic format and any member of the public may inspect it without the payment of any fee. Section 12(3) Upon request and on payment of a reasonable fee, any member of the public may obtain an authenticated printout of an agreement from the Cabinet Secretary. Section 12(4) The Cabinet Secretary shall, on an annual basis, publish a report on the summary of the transactions submitted under this Act and the status of ratification of transactions.
13
ADMINISTRATIVE ARRANGEMENTS - 13. Confidentiality
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The Cabinet Secretary may keep all or part of a ratification-subject agreement confidential for specified reasons; if confidentiality is granted the responsible Cabinet Secretary must submit the agreement to Parliament which will ratify in camera and must not disclose confidential material; any person may challenge the confidentiality decision in the High Court, which may inspect the agreement in camera.

Section 13. Confidentiality Section 13(1) The Cabinet Secretary responsible for the transaction that is subject to ratification may, pursuant to Article 35 of the Constitution, grant a request that the agreement or portions of it ought not to be publicly disclosed on account of commercial confidentiality, national security or other public interest considerations. Section 13(2) Where the request for confidentiality is granted, the Cabinet Secretary responsible for the natural resource that is subject of the transaction shall submit the agreement to Parliament which shall conduct the process of ratification in camera without disclosing any confidential material, but a summary of the agreement shall be made available to the public. Section 13(3) The decision of the Cabinet Secretary on the request for confidentiality may be challenged by any person through appropriate proceedings in the High Court, and the High Court shall have the power to call for and examine the Agreement in camera before determining the matter.

Part V

MISCELLANEOUS

14
MISCELLANEOUS - 14. Regulations
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The Cabinet Secretary may make regulations (in consultation with the Cabinet Secretary responsible for the applicable natural resource) to give effect to the Act and may prescribe specified matters listed in subsection (2).

Section 14. Regulations Section 14(1) The Cabinet Secretary may, in consultation with the Cabinet Secretary responsible for the applicable natural resource, make regulations for giving effect to the provisions of this Act and prescribing anything required under the Act. Section 14(2)(a) prescribe the particular classes of transactions, entered into between the effective date and the commencement date which should be audited, the modalities for conducting such audits and the use for which such findings may be put; Section 14(2)(b) define the thresholds, quantitatively, qualitatively or a combination of both, below which transactions need not be subject to ratification; Section 14(2)(c) prescribe requirements and provide guidelines on the memorandum to accompany the agreement under section 5 ; and Section 14(2)(d) prescribe procedures for making applications and requests to the Cabinet Secretary. Section 14(3) The regulations to be prescribed under subsection 2(a) shall be made within two years of the commencement of this Act.
15
MISCELLANEOUS - 15. Computation of time
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Exclude periods when Parliament is not in session from time computations that depend on the Parliamentary calendar.

Section 15. Computation of time Section Where under this Act the computation of time depends on the Parliamentary calendar, the period during which Parliament is not in session shall be excluded in the computation.
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MISCELLANEOUS - 16. Savings
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A transaction requiring Parliament ratification that was lawfully entered into on or after the effective date but before commencement remains valid and lawful even if Parliament did not ratify it.

Section 16. Savings Section A transaction that is subject to ratification by Parliament, which was lawfully entered into on or after the effective date but before the commencement date, shall continue in effect and be deemed valid and lawful notwithstanding the absence of ratification by Parliament.

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