Strengths and Weaknesses of the KPCS in Zimbabwe
Compiled by Shamiso Mtisi-Zimbabwe Environmental Law Association (KPCSC Coordinator)
The story continues
As noted elsewhere in this Chapter, the KPCS had a number of positive aspects it brought to Zimbabwe in its handling of the Marange issue. The decision by the KPCS to send in Review Missions to Zimbabwe helped in raising awareness about the dire situation in Zimbabwe and it helped the efforts of civil society in campaigning and calling the attention of the international community on the issue of Marange. The other strength of the KPCS in Zimbabwe is that through the implementation of the JWP, which was agreed between Zimbabwe and the KPCS, Zimbabwe managed to adopt best practices in terms of infrastructural developments in the diamond mining area. The KPCS also helped in the sense that the establishment of a Local Focal Point of civil society improved local level monitoring of the situation in Marange. The initiative became one of the most innovative and positive changes in the history of the KPCS. This enhanced the tripartite nature of the KPCS. Civil society managed to assist the KP monitoring team and even presented reports during plenary and intersessional meetings.
Further, the involvement of the KPCS in Marange also indirectly resulted in the decline of human rights violations as the security forces and government started to fear that if they commit these acts, civil society will raise the alarm and report to the KPCS, although there was division on this issue in the KPCS itself.
Weaknesses of the KPCS in Zimbabwe
There were several weaknesses that were noted in the handling of the situation in Marange by the KPCS.
Firstly and most importantly, the KPCS had an opportunity to pronounce itself clearly that it has the mandate and can perfect it through amending its founding documents to tackle human rights violations. Instead faced with cases of state sponsored violence in Marange, the KPCS decided to ignore the fact that the nature of conflicts in the diamond sector had changed from purely rebel movements to include cases of violence committed by state security forces or other actors such as private security guards against the people. The result was a major international outcry and diversity of opinion on whether the Marange diamonds constitute blood diamonds/conflict diamonds that squarely fits within the KPCS definition. The KPCS was timid to treat the Marange diamonds as blood diamonds going by the definition of conflict diamonds in its KPCS founding document. What those who said the diamonds in Marange were not conflict diamonds were deliberately blind to the second paragraph of the KP preamble which recognised the devastating impact of conflicts fuelled by the trade in conflict diamonds on peace, safety and security of people in affected countries and the systematic and gross human rights violations that have been perpetrated in such conflicts. This is evidence enough that the KPCS was originally about protecting human rights in countries such as Sierra Leone, Liberia, DRC and Angola.
The other weakness of the KPCS in its handling of the Marange issue is that some of the statistics did not tally and stockpiles of diamonds that were mined before the embargo were not properly accounted for. For example a forensic audit by Ernest and Young revealed the problems. The KPCS was not very strong in demanding for convincing answers from the Zimbabwean government when it was required to conduct a reconciliation and audit of production and sales records from 2007-2009 and to account for stock piles recovered by the police from illegal miners and dealers. The JWP called for an independent forensic auditor to reconcile diamond production and sales records. This was done by Ernest and Young in September 2010. The audit report revealed that the auditors did not physically audit and verify the existence of a total of 357 118.12 carats of rough diamonds that were confiscated by the ZRP. Further, there was another stockpile that was not subjected to an audit at Canadile. A total of 56 867 carats had not been fully accounted for. The KPCS ignored these facts and proceeded to pretend as if things were normal. These diamonds were never accounted for, but the KPCS ended up removing the embargo on Marange diamonds.
What the KPCS also failed to do in the case of Zimbabwe was to censure the government for avoiding using official banking channels and instead using courier services and men with briefcases in transferring diamond money. This is one of the KPCS recommendations in Annex II that all participants are encouraged to ensure that all cash purchases of rough diamonds are routed through official banking channels, supported by verifiable documentation. The Zimbabwean government and mining companies in Marange were contravening this provision under the pretext of busting the sanctions imposed by the United States as they feared their US$ transfers would be seized by the United State Office of Foreign Assets Control (OFAC). The government argued that diamond mining companies are trading their diamonds through unconventional means because major international banks, insurance companies and couriers do not want to be associated with Marange diamonds.
What the KPCS also failed to do in Zimbabwe was to again go beyond its mandate and tackle the development agenda in the diamond sector. In Zimbabwe, as elsewhere in Africa, the KPCS does not address development needs of people as it treats itself as a scheme that is not concerned with how a country uses its revenues from diamond trade. Diamonds have not fulfilled their developmental potential in many producer countries. Yet the preamble of the KPCS Core Document recognizes that conflict diamonds negatively affect trade in legitimate diamonds which make a critical contribution to the economies of many of the producing, processing, exporting and importing states, especially developing states. This is a statement which shows that the KPCS should be concerned about where diamond mining is going in all countries. It is in diamond producing countries where poverty is on the rise and there are no schools, roads, hospitals, electricity, clean water and national economies are not growing. In the case of Zimbabwe, the KPCS declined despite evidence presented by civil society that diamonds are not benefiting the country and communities, but a few institutions and political elites such as the former Minister of Mines and Mining Development Obert Mpofu. The KPCS stated that it does not deal with issues of revenue and contract transparency and accountability. This gave the Zimbabwean government, especially the Ministry of Mines and mining companies the freedom to loot revenues from diamonds to fund the 2013 elections.
Related to the issue of transparency and accountability is that in Zimbabwe, as in other producing countries that have disclosure laws, the KPCS ignored the fact the people wanted to have access to statistics and KP monitoring reports which are found on the private side of the KPCS website. People want to know how many diamonds were produced and who bought them and how much was realised in a disaggregated manner. KP civil society coalition could not access mine level data on diamond production from all the mining companies, except the aggregated numbers on the website and what was included in the reports by the KP Monitors on DMC and Anjin. The management at mining companies declined to disclose the production figures and any information related to export data of rough diamonds. These are issues that should have been looked at by the KPCS.
In Zimbabwe, some KPCS participants also got attracted and dazzled by the mining infrastructure set up by the mining companies that they failed to take note of the leakages and weak internal controls in Zimbabwe especially around the development of a comprehensive legal and policy framework. There is weak enforcement of the current laws and internal control measures in the diamond sector which is facilitating illegal mining, illegal trade and smuggling of diamonds from Marange.
The Zimbabwean situation also exposed the different fault lines within the KPCS around the decision-making process which is based on consensus as well as the divisions within the KPCS based on geopolitical perspectives. Zimbabwe therefore demonstrated that the decision-making process in the KPCS makes it difficult to reach consensus. It takes time to reach a decision by consensus especially on controversial issues such as Zimbabwe. This made the issue of Zimbabwe drag on for almost three years without any resolution.
The issue of Zimbabwe also exposed the lack of respect within the KPCS especially by some participants especially African governments on the role of civil society. They always assumed that African civil society groups are being used by international organisations or western governments. While the KPCS Core Document calls for equality there is limited respect of civil society as an equal partner in the KPCS and limited protection under the law. This was evident in the Marange case.
Zimbabwe a flash Point for Debate
Since the violence instigated by state security forces in Marange against fenceless illegal miners and dealers using helicopter gunships and ground troops, Zimbabwe immediately became a flash point for debate in the KPCS as the modern face of conflict diamonds. Later, as the mining companies took over and started to secure some of the mining sites, the military and police were replaced by private security guards who in turn were also beating up or setting vicious dogs on women and children in the villages. The nature of conflict in Zimbabwe was not like the old face of Sierra Leone, Angola, Liberia and DRC. In those countries the KPCS was dealing with rough diamonds that were, according to the KPCS Core Document, used by rebel movements or their allies to finance conflict aimed at undermining legitimate governments. In Zimbabwe the conflict was perpetrated by the military and the police at the command of a legitimate government as well as private security guards under the command of mining companies. However, the common thread in these conflicts was the violation of human rights. The current definition of conflict diamond is outdated and does not address the way in which violence/conflicts in the diamond producing areas has evolved since the Kimberley Process was formed over a decade ago. There were areas where state and non-state actors e.g. private security guards (some guns for hire or mercenaries are employed by diamond mining companies) and were committing human rights violations. The KPCS was ignoring this, despite efforts of civil society and other participants and industry.
In the above context, the KPCS Civil Society Coalition from the onset called on the KPCS to deal with the human rights violations in Marange. However, some participants in the KPCS were from the beginning hesitant to deal with the unfolding situation in Zimbabwe. Their argument was that the nature of conflict in Marange did not fit the definition of conflict diamonds which include the use of diamond revenues to fuel armed conflict by rebel movements or for buying arms of war to fight against legitimate governments. The argument was that there were no rebels in Zimbabwe. On the other hand, civil society was strongly calling on the KPCS to take action. There were even arguments by civil society groups that there was a clique in the military and government under the name of the Joint Operations Command which acted like a rebel movement since it was allegedly in control of Marange.
When the KPCS eventually took action by deploying a Review Mission in June –July 2009, one of its narrow mandates was also to look at cases of human rights violations. The team was mainly looking at areas of non-compliance with KPCS internal controls through smuggling, diamond leakages, illegal mining and cross border trade of diamonds and not so much about human rights. Nevertheless, the civil society groups inside and outside Zimbabwe had done a lot of research and presented the group with evidence of gross human rights violations caused by state security forces. During the review visit it was easy to evoke the emotions of some of the Review Team members who had lived through similar atrocities in countries like Liberia, although the atrocities were committed by rebel movements. The result was that their report also contained information about the human rights violations. As indicated elsewhere in this chapter, the report found Zimbabwe to be non-compliant with KPCS minimum requirements in that there was a lot of smuggling of diamonds, weak internal control systems and security at mining sites. Following the report civil society groups also presented evidence of abuses during the KPCS meeting in Namibia.
The KPCS embargoed Marange diamond and not compliant with KPCS minimum requirements solely basing its decision on illegal digging and smuggling of diamonds into other countries like Mozambique and South Africa. The decision was not based on the human rights violations that happened in Marange. The human rights violations in Marange continued in various forms even though Zimbabwe was under the supervised export mechanism. Civil society continued to raise the alarm and report to the KPCS about human rights violations. Many participants denied that Marange diamonds were blood diamonds, while civil society insisted that the nature and form of conflict has changed from what it was when the KPCS was formed.
The conflict in Zimbabwe that involved state sponsored violence resulted in many players in the KPCS calling for a redefinition of what constitutes conflict diamonds to include language on human rights violations or state sponsored violence as constituting conflict diamonds. This situation gave rise to the campaigns by civil society and a few participants to start advocating for the reforms in the KPCS so that it redefines what constitutes conflict diamonds. This was strongly opposed by many countries that thought the attempt at redefining conflict diamonds was an attempt to prevent Zimbabwe from being allowed to trade its diamonds. Civil society and other participants were being accused of pursuing a political agenda.
Zimbabwe became the defining momentfor the KPCS on the issue of human rights. There was a major international outcry and diversity of opinion on whether the Marange diamonds constitute blood diamonds/conflict diamonds that squarely fits within the KPCS definition. The failure by the KPCS to seize the opportunity to deal with new forms of conflicts associated with diamond mining and trade frustrated a lot of actors and civil society groups. For example due to the failure by the KPCS to deal with the illegality people like Ian Smillie had to quit frustrated by what he termed “pretence of the KPCS members that failure is success”. Global Witness, one of the founding civil society coalition members also left the KPCS. Even, the so-called mavericks like Martin Rappaport had walked away early. All these people and organisations had to quit because they believed the scheme had failed to sufficiently fulfill its mandate and to adapt to the changing nature of conflicts, especially around non-compliance, smuggling, money laundering and human rights abuses as what happened in Zimbabwe.
The KPCS established a Committee on KP Review to work on various reform issues including assessing whether there is need to redefine what constitutes conflict diamonds. The Committee made attempts at redefining but there was no agreement and mandate of the Committee ended during the 2013 Plenary meeting in South Africa. However, the KPCS recommended the establishment of an innovations committee to drive reforms.
Any Changes within the KPCS after Zimbabwe
Zimbabwe was finally allowed to trade like any other country in November 2012 through the Washington Communique. The storm ended, but Zimbabwe is still on the radar since it became a test case of whether human rights constitute conflict diamonds. The problem at the moment is that whenever anything about reforms is discussed in the KPCS, people start thinking that it is because of Zimbabwe. This has somehow stifled debate in the KPCS and has stalled the reform agenda in the KPCS.
All reforms associated with changing the definition of what constitute conflict diamonds were rejected by some participants including the Zimbabwean government, the African Diamond Producers Association (ADPA) and other countries like China, Russia and South Africa. Consequently, the 2013 Plenary in Johannesburg, South Africa ended without any agreement on key reform priorities that were related to the situation in Zimbabwe. The Plenary noted that the Committee on KP Review could not reach consensus on Decision-making and Conflict diamond definition. Therefore the 2013 plenary encouraged the Chair, Participants and Observers to continue dialogue on these areas. There was also a proposal to create a new forum for generating and sharing innovative ideas. 
However, what has moved on the reform agenda within the KPCS are easy pickings and less controversial issues such as the establishment of the Administrative Mechanism, which basically is the KPCS secretariat/office. The KPCS over the past ten years had no permanent office. Other changes that were made within the KPCS related to definition of other technical terms aimed at strengthening the implementation of the KPCS within its current remit. For many the fact that the issue of Zimbabwe which occupied KPCS debates for the past four years is over enabled the KPCS to start focussing on other issues such as redefining some terms, but not conflict diamonds. The KPCS is now focussed on other problem countries such as Central Africa Republic.
The fights over
Marange within the KPCS represent an opportunity for the rebirth of the scheme
and not its end. There are other ideas and ongoing discussions to create a
parallel structure within the ambit of the OECD to tackle human rights issues
in the precious stones sector, including the diamond sector. This can work
perfectly in ensuring that diamond mining companies carry out due diligence
studies on human rights impacts before they invest in any area. This will help
to avoid conflicts with communities.
 Martin. A and Taylor. B (Eds) (November 2012); Reap What You Show: Greed and Corruption in Zimbabwe’s Marange Diamond Fields; Partnership Africa Canada
 Nehanda Radio (8 November 2013); Zimbabwe 2013 Election Rigging Report: Part 3 nehandaradio.com/…/the-zimbabwe-2013-election–rigging-report-part-3/ accessed 18 November 2013
 KPCS Civil Society Coalition Representatives in Zimbabwe (10 May 2012); Report on Visit to Marange and Other Matters Observed in the First and Second Quarter of 2012; Report Submitted to the KPCS Working Group on Monitoring; The visit to Marange was conducted on the 7-8 of March 2012
 Partnership Africa Canada; (June 2010) Diamonds and Clubs, the Militarised Control of Diamonds and Power in Zimbabwe
 Ian Smillie (2010) Blood on the Stone, Greed, Corruption and War in the Global Diamond Trade. Anthem Press, IDRC
 KPCS (November 2012) Final Communiqué from the Kimberley Process Plenary Meeting. Washington, D.C.; United States of America