Environmental Legislation Update

 

 

The objective of this section is to update our readers about new legislation and policies related to environmental management and their implications on people’s lives. These may be already in operation or are still under consideration by Parliament or the relevant Ministries.

 

1. Water (Waste and Effluent Disposal) Regulations of 2005:                       

 

These regulations were passed in terms of the Water Act (Chapter 20:24) in Statutory Instrument 30 of 2005. They amended the Water (Waste and Effluent Disposal) Regulations of 2000 (SI 274/2000).

 

Section 14 of SI 274 was amended by the insertion of a new provision which introduce the concept of spot fines in water pollution cases. The new provision gives the Pollution Control Unit power to issue a spot fine or ticket to any permit holder in cases of breach or contravention of permit conditions or for the discharge of effluent without a permit. However, the spot fine or ticket will not exceed level four which is $$100 (revalued)

 

This is a very low fine or penalty which will fail the test of deterrence as a criminal sanction. However, the polluter pays principle will also be applied in such cases.

 

2.      Environmental Management (Control of Ozone Depleting Substances and Ozone Dependent Equipment) Regulations, 2004

 

In terms of the Environmental Management Act (Chapter 20:27), the Ministry of Environment and Tourism passed Statutory Instrument 133/2004. The regulations came into operation on the 1st of July 2004. They provide for the importation, exportation, use and consumption of ozone depleting substances and ozone depleting substance dependent equipment. Further they provide for the disposal, recovery and destruction of Ozone Depleting Substances and Ozone Dependant Equipment.

 

3. General Laws Amendment Bill, 2005

 

The purpose of the Bill is to make minor amendments to various Acts including the Environmental Management Act (Chapter 20:27). Clause 23 of the Bill will amend six sections of the Environmental Management Act.  However, this update will touch on two amendments that are more relevant to environmental management.

 

(a)   Section 57 of the Environmental Management Act which provides for the prohibition of water pollution will be amended through raising the fine for water pollution. Now a person who is convicted of polluting water can be sentenced to five years or to a fine not exceeding level fourteen or fifteen thousand dollars (revalued), whichever is the greater. Previously, the Act provided that such a person will be fined five million dollars or five years in prison or both.

(b)  Section 63 provides for air pollution and a person who is found guilty of polluting air can be fined a level fourteen fine or fifteen thousand dollars (revalued), whichever is greater or to imprisonment for a period not exceeding five years.

 

Currently, a level fourteen fine is still pegged at $5 000 (revalued) in terms of the Criminal Law Code of 2005. This means the courts will order a convicted person to pay $15 000 (revalued), but if the fine levels are revised and are raised above the $15 000 mark, then the courts will impose the new fine level that will be greater than the $15 000.

 

4. Criminal Law (Codification and Reform) Act (Chapter 9:23), No 23/2004

 

The Criminal Law Code or in full the Criminal Law (Codification and Reform) Act (Chapter 9:23) seeks to consolidate and where necessary to reform the common law criminal law of Zimbabwe. Further, it seeks to set out in a concise and accessible form what conduct the criminal justice system forbids or punishes and outline what defenses can be raised to criminal charges. However, the Code is not yet operational since it has not yet been signed by the president.

 

The Criminal Code is important for environmental cases for two major reasons. Firstly, it seeks to revise the Standard Scale of Fines in its First Schedule. A fine in level 1 is now pegged at $10 (revalued) while the highest level is level 14 which is now $5 000 (revalued). This applies with equal force to environmental crimes such as water pollution, air pollution and littering among others. Nevertheless, this revision is a far cry from what environmentalists expected given the decrease in the buying power of money in Zimbabwe.

 

Secondly, the Code is important in that in its Third Schedule paragraphs (c), (g) and (h), outline what are called acts constituting criminal nuisances. What is relevant to the environmental sector is that the Act states that any person who throws or deposit any refuse material in any public place which has not been set aside for that purpose, or allows any refuse, excrement or other offensive material to be thrown or spilt on a public place, or cuts down, removes, destroys or injures any wood, tree or shrub without permission shall be guilty of an offence.

 

These are all environmental crimes that have been included in the Criminal Code and what remains to be seen is whether the law enforcement agents will enforce these environmental laws.

 

5. Draft Mines and Minerals Amendment Bill

 

The Draft Mines and Minerals Amendment Bill has not yet been introduced into Parliament. The Bill seeks to amend the old Mines and Minerals Act (Chapter 21: 05). However, the major environmental highlights of the proposed law are: -

 

a)     Holders of mining rights in Zimbabwe will be required to do an Environmental Impact Assessment (EIA) within 6 months of the new law coming into force.

b)     Every holder of mining rights will be compelled by law to establish a fund for purposes of managing or rehabilitating the environment. The minister may use the funds for this purpose if the holder fails to manage or rehabilitate the environment.

c)      Every mining company shall have 50% of its shares held by indigenous Zimbabweans within 10 years of the proposed law coming into force. In addition, mining companies will be required to give preferential treatment to indigenous Zimbabweans when sourcing capital goods, services and consumables. The Minister may forfeit equity in a mining company which does not comply with this requirement and also fails to write a report to the Minister explaining its failure to comply with the laws.

 

From an environmental perspective, the proposed law is commendable for seeking to protect the environment by requiring mining companies to do Environmental Impact Assessments (EIA) before carrying out mining operations. Nevertheless, Environmental Impact Assessments are already a requirement for mining companies in terms of the Environmental Management Act (Chapter 20:27). The obligation of mining companies to establish an environmental fund is also a welcome development since miners previously had no legal obligation to rehabilitate the environment.

 

 

6.  National Biotechnology Authority Act (Chapter 14:31) of 2005

 

The National Biotechnology Authority Act of 2005 was approved by Parliament in March 2006. The Bill seeks to establish a National Biotechnology Authority which will manage and regulate all biotechnology issues in Zimbabwe. The Authority will issue biotechnology guidelines and standards procedures which will be binding on all users and producers of biotechnology. The primary function of the Authority is to ensure that activities involving the production and processing of biotechnology  do not cause adverse effects on health, the environment, the economy, national security and social norms and values.

 

The Bill will largely be a framework legislation that will be supported by regulations that will be passed by the relevant Ministry.

 

In 2004, ZELA arranged a Legislation and Policy Dialogue meeting to discuss the Biotechnology Bill in partnership with Community Technology Development Trust. The objective of the dialogue meeting was to give stakeholders and decision makers the opportunity to discuss the Bill and make contributions. Notably, some of the recommendations made at the meeting were taken into consideration and included in the Bill.

 

7.  Draft Access to Genetic Resources and Traditional Knowledge Regulation, 2006

 

The Draft Access to Genetic Resources and Traditional Knowledge Regulations of 2006 are being made in terms of the Environmental Management Act as subsidiary legislation. The draft Regulations seek to achieve the following: -

 

i)                    Protection of rights of communities that have knowledge of genetic resources and have managed, conserved and enhanced traditional knowledge, culture, and various forms of practice related to the use of genetic resources which are held in common.

ii)                  Strengthen the informal knowledge system and collective innovation of communities and protect this from claims for private ownership and private intellectual property rights.

iii)                Ensure conservation and sustainable use of genetic resources and related knowledge and improve their diversity as a means of sustaining the life support and health care system of the people of Zimbabwe.

iv)                Protect and support the rights, knowledge, innovations and practices of local and indigenous communities and national scientific and research institutions.

v)                  Provide for access to genetic resources based on the prior informed consent of the concerned local or indigenous communities and the state.

vi)                Promote equitable sharing of benefits arising from the use of genetic resources

 

 

These draft regulations are meant to protect the hitherto exploitation of genetic resources and indigenous knowledge systems vested in local and indigenous communities by individuals who register intellectual property rights over the resources and benefit to the detriment of the communities. The current system of intellectual property law only recognizes registered private rights and not community rights. This is one piece of legislation that ZELA is looking forward to since it will assist some of the Community Trusts being registered by ZELA. It is hoped that the draft regulations will be gazetted into law in the near future.