New Mines and Minerals Act needed to end chaos in sector
Mines and mineral activities in Zimbabwe are currently being regulated by the Mines and Minerals Act of 1963, which has proved to be an obsolete piece of legislation out of touch with contemporary activities as well as the nature in the current industry.
This opinion piece serves to depict the deficiencies that have grown over the years in the colonial legislation making it inadequate to regulate the current mining landscape, with object to canvass for an all-encompassing legislation that speaks to the exigencies of the time in the industry with the aim of fostering sustainable mining in line with the values of an open democratic society, human dignity, equality and freedom.
The prevailing presumption among the legal minds in the mining fraternity is that legislation was modelled in a manner that was meant to safeguard the interests of the colonial elite and those in the echelons of power.
The attainment of independence in Zimbabwe in 1980 saw the country adopting democratic values in which transparency and equality was sought.
The post-independence period sought a new era for the judicious exploitation of the national endowments for the benefit of the citizenry.
This became the core of governance in the mining industry.
There have been several attempts by the legislature to cure the legislation through amendments but the legislation has remained inadequate in nature to govern the developments in the industry.
The biggest pitfall of the Mines and Minerals Act of 1963 is that it lacks statutory measures and provisions which can prevent mineral revenue leakages, corruption, vague mining licensing and poor mining taxation and royalty system.
As has been alluded before, the Act was crafted particularly targeting big mining conglomerates which existed during the time.
The empowerment drive of 2000 saw small players who are mainly locals and Chinese taking the centre stages.
Unlike the former conglomerates which had formal and auditable systems, the small scale player coming in saw the increase in revenue leakages, corruption and a host of other mining industry economic ills manifesting.
The legislature reacted to these misfortunes through the Mines and Minerals bill of 2015.
Among other aims, the Bill sought to plug numerous revenue leakages and corruption which are bedevilling the industry which the 1963 Act had failed to deal with.
However, the disheartening legislative development is that the Bill remains a pipe dream as it is yet to come into law since 2015.
What is discouraging is the lack of urgency and reluctance by the legislature and Executive in promulgating and subsequently enacting it into law.
Revenue leakages and corruption continues unabated in the mining industry. One would wonder why it has taken the executive such a long time to enact the Bill despite the government mantra of “US$12bn mining economy by 2023” and “growing the national revenue base and plugging leakages in the mining industry”.
One would wonder the sincerity of the executive in that call, or whether the executive has become a player-regulator who is unwilling to blow himself the whistle.
The new Bill contains a cocktail of measures aimed at addressing a myriad of challenges in the Mining sector.
Section 14(1) of the new Bill provides for a cadastre system, which means the use of manual or electronic management and recording of processes that create mining rights and titles.
The cadastre system will be an efficient way of management of mining activities in the sense that it will remove the corrupt human element and provide a tool which will make profiling and compliance by operating licence holders easy.
If properly and effectively implemented, the cadastre system will improve the public’s access to data or information about mining licences, a legal provision which is not provided for by the current Mines and Mineral Act.
However, the legislature should fine-tune the provision which violates the separation of power principle through which our constitution is founded.
The Bill provides that the Permanent Secretary of Mines will double as the registrar of cadastre system and as the chair of Mining Affairs Board.
This undermining of the separation of power principle will negate the freedom, tenor and purports of democracy which the masses of Zimbabwe envisaged through the yes vote in which brought the 2013 democratic constitution.
The same scenario also negates the principles of corporate governance as it creates room for abuse of power and corruption in awarding mining licenses. An independent body should assume such responsibilities.
Section 19(1) of the new bill states that, “Where two or more competing applications are received in respect of the same area or the same overlapping areas from two or more persons on the same business day, the application which is first received on that business day shall be deemed to have priority over any other”
This is a sound, self-executing, progressive legal provision meant to clamp down the discretion of mine officers which is being corruptly abused and perpetuating disputes and unnecessary clogging the courts.
Under this provision the serving of licenses will be on a first come first serve basis. Double licensing and allocation has been the cause of machete wars and unrest in the industry. However, the legislature needs to have made this provision in retrospect to deal with the already existing disputes.
The adoption of the use it or lose it principle in the new Mines and Minerals bill is one of the profound provisions.
However, the government needs to take into account the principle of sustainable mining. Sustainable mining principles provide that mining must be done progressively taking into account the need for future generation and industry.
The use it or lose it principle provides that the government can repossess a mining licence which was acquired for speculative purposes.
The principle will force mining companies to be productive and contribute to the national mineral output.
Section 27(2) provides that an exclusive prospecting licence shall not entitle the prospector to remove or dispose of any mineral, mineral oil, nuclear energy mineral or natural gas discovered within the area specified in the licence, except for the bona fide purpose of having it assayed or for 25 determining its nature and unless the Cadastre Registrar has given prior written permission for it to be removed or disposed of”
This section plays a very critical role in curbing the ongoing mineral resource leakages which is taking place in the country on alluvial mining of the country’s precious minerals such as diamonds.
It is a public secret that some very big mining companies are conducting mining operations under the auspices of exploration which section 27(2) wants to cure.
Transparency and accountability were some of the thorny issues in the mining industry, however under the new Bill mining giants will now be obliged to be listed in the stock exchange, which is a positive development in the promotion of accountability, transparency and curbing illicit financial flows ravaging Zimbabwe’s mining sector.
Section 85B of the Bill states that, “Any owner or occupier of ground who is injuriously affected by the exercise of any rights under any mining rights or title granted under this Act shall be entitled to recover compensation from the person to whom the mining rights or title was granted or in whose favour the mining rights or title was made in such amount as may be agreed upon or, failing such agreement, as shall be determined by the Administrative Court”.
This section in the Bill is progressive because it provides compensation caused by mining activities which is in line with the law of damages.
However, the challenge with this particular provision is that it fails to make it mandatory for any victim who is displaced due to mining activity to claim compensation before being relocated. Mining companies can take forever to compensate displaced inhabitants and the inhabitants being on the weaker side of the bargain will be vulnerable. The Bill should unequivocally provide for the compensation before removal so as to protect the right to shelter and human dignity.
We have thousands of Zimbabweans being relocated without compensation by mining companies and up to day they have never received any compensation, a development which is unjust and unfair in a democratic society based on human dignity.
Zororai Nkomo is a Zimbabwean journalist, Lawyer and Environmental Justice Activist, he writes in his own personal capacity. He can be contacted on [email protected]