By Josephine Chiname and Bridget Mafusire
The law as a conduit for economic development, creates an environment for steady and fundamental growth to occur. Thus, the interplay between legal principles and local economic development concerns is important. For community members from natural resource-rich areas, the law can be the protection they need against abuse of basic human rights on the one hand, and a tool for holding local investors and government to account on the other.
In the Marange diamond fields in Zimbabwe’s Manicaland region, surrounding community members have come to realise some benefit from taking legal action to enforce their environmental rights, and have used the same tool to try and hold investors and government accountable for local economic development obligations.
In this article, Bridget Mafusire and Josephine Chiname explore the role of litigation in facilitating economic development, by delving into existing case law and analysing how each of the Marange community cases has in their own way contributed to upholding the rule of law, and improving local socio-economic development for the local community.
The importance of litigation
Public Interest Litigation (PIL) has proven to be of paramount importance in ensuring that community rights are upheld. Unlike regular litigation, PIL focuses on achieving socio-economic change that positively impacts the lives of the communities as opposed to an individual. It is true, however, that a positive court outcome may ultimately be ineffective if it is not combined with other activities to further the cause of the communities. Enforcement of and monitoring compliance with favourable court decisions should not be taken lightly, PIL works best as part of an innovative campaign on the basis of a broader underlying theory of change. In order to become effective for societal change therefore, the court process must be conducted in conjunction with other complementing activities such as community capacity building, research, and advocacy campaigns among others.
PIL Enablers in Zimbabwe’s Constitution
In addition to individual persons acting in their own interests, or in the interests of another, Section 85 (1) of the Constitution extends legal standing to;
a) Any person acting as a member, or in the interests, of a group or class of persons.
b) Any person acting in the public interest.
c) Any association acting in the interest of its members.
This provision abandons the traditional approach which calls for application of rules of legal standing through the direct and substantial interest test as was enshrined in section 24 of the old Constitution.
In Malvern Mudiwa & Anor v Mbada Diamonds & Others (2009) applying the traditional approach, the court held that the Applicants had no legal standing to represent the interests of the community. Now that section 85 (1) of the Constitution allows this, Mr. Mudiwa, a community leader in Marange, has the locus standi to approach the court.
In addition, Section 85(3) (d) and 167 (5) (c) of the Constitution allow a person to appear in the Constitutional Court as an amicus curie (friend of the court). Rule 10 of the Constitutional Court Rules gave effect to this provision. In terms of our law, an amicus curie can be invited by the court or one can make an application to be considered as such. These provisions allow organisations and experts who may not be part of the legal proceedings to make representations before the court on a particular legal matter for the ultimate benefit of the community.
The Zimbabwe Environmental Law Association (ZELA) has in the past been a friend of the court, and at present has taken a bold step in establishing a PIL Unit based on the great need for this in environmental, economic, social and cultural rights (EESCR) issues. Since its inception ZELA, identified PIL as one of its strategies. Up until recently, the litigation had been sporadic. But since the establishment of the PIL Unit in January 2019, ZELA now has two fully dedicated PIL lawyers, and its PIL Unit has been revamped and is ready to file process. ZELA’s work covers programmes in protecting the rights of communities in mining and extractive industries, land and natural resources, local service delivery, climate change and energy, responsible business and investments.
An expanded bill of rights with justiciable EESCR can act as a facilitator for communities to realize socio-economic changes. The previous constitution did not make provisions for these, for instance, environmental rights were only recognized in the Environmental Management Act (of 2002), and were not recognized as actual constitutional rights. The current constitution therefore facilitates the tenets of local economic development in its entrenchment of key legal principles that are fundamental safeguards for citizens.
Reflections on legal disputes
a. Protection from Arbitrary evictions – Malvern Mudiwa & Anor v Mbada Diamonds & Others (2009)
In December 2009, Chiadzwa community members, with assistance from ZELA filed an urgent chamber application to stop their eviction and relocation by diamond mining companies and the government until the issue of compensation had been addressed. They also sought to prevent the companies from mining until an EIA had been conducted as required by the Environmental Management Act. The application was dismissed on the basis that it was not urgent. The judge pointed out that the community should have raised the issues when mining activities commenced in 2007. The court also held that the applicants had no legal standing to bring the case on behalf of the community in their own capacity (as mentioned earlier).
The lesson learnt for the community from this case is the importance of timing when filing PIL cases and the procedure to pursue. Though the court judgment was unfavourable, the diamond companies revealed information under oath regarding the relocation of the communities and the Chiadzwa community was able to hold government and the companies to account regarding accommodation and other social amenities using this information.
Before the court case; community members were moved into tobacco barns. After the court case and having been armed with the information that was disclosed in submissions to the court, community mobilization resulted in the construction of model three bed roomed houses, outside kitchens and toilets and some social amenities like a school. Whilst what was provided may not have been of the appropriate quality, it was certainly better than the old tobacco barns.
Commenting on the role of litigation as a community empowerment tool, Mr. Mudiwa said:
‘As a community, we used to be afraid about speaking about rights as we thought this would be judged to be political. However, the training we have received from ZELA about our EESCR through the various projects, gave us the knowledge and confidence to defend our rights against those violating them and also to the greater population of our community as we are no longer afraid to demand the realization of our rights’. (ZELA, 2012)
b. Access to information – The Trustees of Arda Transau Relocation Development Trust v The Minister of Local Government Public Works & Ors HC 68/18
The Applicant, a registered trust represents the interest of the people who were relocated to ARDA-Transau from Marange when various mining companies began their activities there. The residents had questions regarding their compensation, security of tenure in ARDA-Transau and the availability of basic amenities in the new area. In order to assert their rights, the community required information from the Ministry of Mines that included the Environmental Impact Assessment (EIA) reports, and minutes of meetings held by the government. When approached by the community, the Ministry of Mines refused to furnish this information.
This led to the community, instituting a PIL case against the Minister and the Zimbabwe Consolidated Diamond Company (private) Limited. On the 24th January 2019, the community obtained an order which compels the ministry to furnish requested information within three (3) months.
The ARDA-Transau Development Trust and the community as a whole have been monitoring the Minister of Mines’ compliance with the judgment. While the enforcement of this judgement is still work in progress, the community has already benefitted from the litigation as they now have a court order which they can use as a precedent.
c. Adequate compensation- Cherechedzai Chiadzwa & Anor v Ministry of Local Government & Others
In December 2016, Marange Development Trust obtained an order which prohibited ZCDC from evicting the Trust’s members. Twenty Six (26) families who benefited from the court order had subsequently consented to relocation. In Cherechedzai matter, however, the two applicants did not give consent on the basis that no full information on how compensation would be effected had been disclosed.
Dialogue with the mining company and other relevant companies failed. Through the assistance of ZELA, the two filed an application. This matter is work in progress, and is one to watch, especially as the government of Zimbabwe has taken the approach to compensate farmers who were involuntarily evicted from agricultural land [see article here]. Although the circumstances for the two community members are slightly different since they occupy non-agricultural land, it is important to note how the government will treat the rights to fair and adequate compensation as espoused in the current Constitution.
d. Enforcement of environmental rights- ZELA & Others v Anjin Investments (Pvt) Ltd & Others
In this matter, the plaintiffs brought a claim in the High court regarding the disposal of effluent from the defendants in the Odzi, Save and Singwizi rivers. The mining companies argued that the Environmental Management Agency (EMA) is the first local remedy that the community members should approach for redress, rather than the High Court, this position was held to be incorrect by the Court since EMA has not the right to make declarations on issues pertaining to rights.
The Precedent that was set regarding the fact that EMA is not a dispute settlement body is of importance in reiterating the jurisdiction of the court on EESCR matters.
e. Other litigation
Information derived from private litigation can also be used for advocacy and assertion of human rights. In February 2016, the Minister of Mines ordered all private mining companies to cease operations in Marange area. The decision by the Minister resulted in many civil actions instituted by the diamond companies. There were civil suits instituted by Anhui Foreign Economic Construction Group Ltd, Anjin Investments (Pvt) Ltd and Grandwell Holdings (Pvt) Ltd.
As a result of these civil cases, the Joint venture agreements between ZCDC/ZMDC and the diamond companies became public. Civil actors, and community members are now able to have access to these previously inaccessible documents. In so-doing, it creates the basis for advocacy for clauses and obligations that take into account community rights, and local economic developmental issues.
The cases have also revealed that ZMDC and its joint venture partners contravened the Mines and Minerals Act and exploited minerals based on invalid special licenses. This information can also be used to advocate for transparency on issues relating to licensing and monitoring of contracts as required by section 315(2) of the Constitution.
Litigation for socio-economic change has in the past been beneficial to communities in the diamond mining sector, however there is room for more actions holding mining companies accountable on human rights and local economic development issues. More cases should be filed to ensure lasting success and build precedent that communities can use.
In order to do this however, communities must be educated to build their capacities to identify potential rights violations. This work is part of ZELA’s strategy to reach out to communities through training of paralegals who are identified community champions trained in legal issues and skilled to record and report rights violations in their communities.
Community members decry the issue of employment opportunities for local community members. Section 14(1) of the Constitution provides that the state and all institutions and agencies of government at every level must endeavour to facilitate and take measures to empower, through appropriate, transparent, fair and just affirmative action, all marginalised persons, groups and communities in Zimbabwe. With the coming into operation of the state owned actors such as ZCDC, where private companies previously operated, it remains accountable for the obligation of the state to include employment creation for local marginalized communities, and empowerment in its immediately measurable results.
Empowerment initiatives must include upskilling community members to partake in the crafting of policies that affect them. So far, community members in Marange have not been consulted in the formulation of the recently published Diamond Mining Policy.