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Righting the wrongs in Zimbabwe’s Mineral Resource Governance: The Zimbabwe l envision

By Pride P Dzapasi

It is indisputable fact that the geographical location and uneven distribution of mineral resources across the world and their infinite character, as well as their industrial demand makes competition to access them amongst foreign mining investors very competitive. [1]Fortunately, Africa is richly endowed with an array of mineral resources.[2] The economic value of minerals makes them one of the most treasured natural resources on the African continent and has been one of the major drivers of colonization.[3] Regardless of being home to various mineral resources, however, the development of Africa as a whole and of individual states has not been concomitant with this endowment, a paradox captured as the “resource curse’.[4] Although international law provides African states with the mandate to regulate and derive benefits from exploitation of their mineral resources, they do not appear to be working within this mandate in a manner that ensures the flow of benefits in a sustainable and equitable way.  This legal article identifies three key international law principles which support state sovereignty over minerals resources; namely self-determination, non-interference and permanent sovereignty over natural resources. Along with right to development, these principles provide a solid basis in international law for developing states to capitalize on the regulation and exploitation of their mineral resources in a developmental way. The realpolitik of mineral exploitation, however, requires that developing states court investment and establish reliable trade relations.[5] Therefore the foundation of this legal article is to illustrate the multi-faceted ways in which Zimbabwe use or fail to use its domestic laws in a manner that allows it to derive benefits from international law mandate supporting self-determination and development. The author of this article will also provide recommendations to the Government, Mining Investors, Civil Society Organizations as well as how Youth participation will remain the chief cornerstone of any modern day state, for instance Zimbabwe in the context of its socio-economic trajectory.

The Concept of Sovereignty, Mineral Resource Regulation and Economic Development: Zimbabwean Case

Zimbabwe is an appropriate case study because its colonial history is wound up with its mineral resource endowment, it has experienced conflicts in relation to that endowment and (perhaps as a result), it has adopted radical policies with a view to asserting its sovereignty over domestic natural resources. In terms of natural resource endowment, Zimbabwe is richly endowed with an array of mineral resources and it has more than 40 economic mineral resources that are mined or capable of being mined, in addition to having the second largest platinum reserves in the world after South Africa.[6] Among its mineral resources, Zimbabwe is endowed with major deposits of diamonds, platinum, gold, coal, emeralds, copper, cobalt among others. The discovery of diamonds in Marange (Manicaland Province) and Devure Ranch in Bikita district (Masvingo Province) helped the country to increase its mineral resource exports. Given that Zimbabwe is richly endowed with a variety of mineral resources, it can be concluded that its potential for development is high if those resources are exploited in a manner that allows for the creation of human, financial and manufactured capital.  The country relies largely on foreign investment. Mineral resource exploitation and processing is capital intensive, therefore the regulatory framework for this requires transparency and accountability, appropriate regulation and protection of foreign investment, as well as security of tenure, which in turn provide investor confidence.  The domestic minerals sector once became the largest of its type in Africa South of the Limpopo River.[7]Eight major companies including BHP minerals and Wankie Colliery. It made a valuable contribution to the national GDP. Despite having a developed infrastructure and the economic systems these declined rapidly from the 1990s, ostensibly as a result of poor accountability, negative external publicity and poor regulation. The national GDP fell by more than half between 1998 and 2008. However, the formation of the Unity Government and adoption of the US$ as the official currency in 2009 significantly and steadily reversed the relentless economic decline.[8] The highest contribution by the sector was 22 percent in 2014 to the economy.[9] Sadly from 2014 up to this year (2020) the sector is failing to sustain the economy as expected.

Property and Ownership Rights

The preamble to the Constitution of Zimbabwe, 2013 acknowledges the natural resource endowment and the Mines and Minerals Act specifically provides for inherent state ownership and custody of all domestic mineral resources. The fact that dominium over all domestic minerals vests in the State President and held in trust of all Zimbabweans shows that ownership and property rights in the minerals themselves cannot be transferred and this right protected by the Constitution and the Mines Act. In order to exploit domestic mineral resources, Zimbabwe requires both direct and foreign investment. In the assertion of sovereignty, the state may grant an investor the right to explore specific minerals by granting mining licences for a certain of period of time subject to renewal. Property rights are a driver that can promote protection of the investments and security of tenure. However, security of tenure can be threatened in various ways, one of which be changing the law on the extent of foreign versus indigenous shareholding in firms and already holding exploitation rights.

Access to Mineral Resources

The right to grant exploitation rights vests in the President, who is the custodian and the owner of domestic minerals on behalf of Zimbabweans. Accordingly, those who possess and exercise political powers actually have the capacity to decide who gets what, when and how.[10] The Minister of Mines in consultation with Cabinet plays a crucial role in assisting the State President to arrive at an appropriate decision on whether to grant rights of access to a mineral resource to an investor. There is no requirement that consultations prior to coming up with a decision be transparent. It is not unreasonable to believe that the allocations may be politically biased.

Recommendations to the Zimbabwe Government, Mining Investors, Civil Society Organizations and to the Young People

Illegal Miningcan be defined as unlawful access to, and exploitation of mineral resource. The absence of lawful rights is inferred from engaging in mining or related activities without a valid license or mineral transportation permit, as well as any documents that legitimizes the operations. Unconfirmed reports point out that illegal mining is on the increase throughout the country. For example, reports say police have failed to stop thousands of illegal miners from invading Doves area in Inyathi, Bubi district following the discovery of gold deposits as well as Kitsiyatota area in Bindura.[11] Undeniably, illegal mining undermines state sovereignty because the operations are unauthorized and unregulated as well as not compliant with domestic laws. Exacerbating the situation is the fact illegal miners use illegal channels to siphon the resources out of the country, thereby depriving the state the right of control over processes and revenues. Zimbabwe must put strategic measures to curtail this illegal mining activities including legalizing the sector players.

The Mines Act allows investors to get claims for free and it is skewed in favor of foreign investors for whom it provides too much protection at the expense of the state. There is need to repeal the outdated Mines Act and the replace it with a new principal mining law that brings domestic mining and regulation into line with international standards. There is need to vest custody and ownership of all mineral resources in the state (not the state President) in order improve transparency and accountability and to empower institutions to implement checks and balances, as well as to improve compliance. The proposed new mining law should contain elaborate provisions to curb corruption and loopholes in tax collection as well as illicit financial flows. Further, there is need to repeal the Gold Act, Copper Act and Precious Stones Trade Act-these are outdated and do not reflect modern trends like transparency. There is need for political will to strengthen and spearhead sound policies, as well as transparency and accountability in the mineral value chain. Further, there is need to enact mandatory provisions in for imprisonment terms in mining laws for threats such as corruption in the mineral value chain and illegal mining, and smuggling of the resources. There is also needed to capacitate the Anti-Corruption Commission in order to assist the policy to curb corruption in the mineral value chain.

On corruption- unconfirmed reports allege that some politicians use their influence and intimidation in order to derive self-serving economic benefits from mining companies. To escape attention and public scrutiny, these politicians use agents or runners in the mining or trade of minerals. Former Minister of Mines Obert Mpofu, allegedly dismissed calls for transparency and accountability in the mining sector arguing that one has to reap where he sows.[12]

Since navigating threats and interference has been a challenge, there is need to take inherent steps and measures regardless how trivial this could be, to close the gaps and weaknesses in the mineral resource regulatory framework, by establishing mines special courts to specialize in investigating and dealing in mineral resource crimes only.

To the young people, the future is young. They must be on the forefront in the context of developmental consensus. The future is in their own hands. The young people must work together with the government of Zimbabwe in the developmental agenda and the government must be willing to work with them, since any modern democratic society is anchored on the emancipation of young people. To mining investors, there must understand that Zimbabwe is a Sovereign state and a Constitutional democracy, thus there is need to comply with domestic laws. There must be mutual understanding with the Government of Zimbabwe and respect its Citizens. To the Civil Society Organizations, there must take up ‘arms’ with the aid of domestic laws to protect the State, its people as well as investors. We are in a global village and thus we need each other.

The writer is a 4th year law student at Zimbabwe Ezekiel Guti University (ZEGU) but he writes this article in his own personal capacity. He is also the Secretary General for Zimbabwe Environmental Law Association (ZELA-ZEGU). He is contactable on 0775 683 097, email-pridepdzapasi@gmail.com

[1] See the United Nations Economic Commission for Africa, International Study Group Report on Africa’s Mineral Regimes ‘The Minerals and Africa’s Development’ 2011 at 2 & 21-27

[2] Examples of minerals found in Africa are; bauxite, cobalt, diamonds, gold, chrome, copper, platinum group metals, zircon, zinc, emerald, nickel, limestone, topaz, iron ore, titanium, asbestors, spinel among others

[3] The Minerals and Africa’s Development, supra note 1 at 12-13

[4] See generally Michael L Ross ‘ The politics of the resource curse: A review’ 2013; Ichumile Gqada ‘ Mining and Minerals for Development: making the case of Africa ‘ 2012

[5] See generally Richard J Lazarus ‘ Changing conceptions of property and sovereignty in natural resources, at 3-4 2003

[6] See All- Africa ‘Zimbabwe: Mineral Resource present a wealth of opportunities’ 2009

[7] John Hollaway ‘Mineral policy in Zimbabwe: Its evolution, achievements and challenges’ (1997) 23 Resources Policy 27 at 28

[8] Zimbabwe National Budget Statement 2011 at 243, presented to the Parliament of Zimbabwe on 25 November 2010 by Minister of Finance Tendai Biti

[9] Zimbabwe Chamber of Mines 2009

[10] Farai S Mtondoro, Godwin Chitereka, Mary- Jane Ncube Andrew I Chikowre ‘Preliminary findings from a study conducted by Transparency International Zimbabwe (TI-Z) 2013 at 4

[11] See ‘Gold rush in Inyathi’, NewsdzeZimbabwe, 19 July 2014

[12] See  Newsday ‘ Shut up on diamond money’ Newsday 28 July 2012

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