The Mines and Miners Amendment Bill has been topical over the past wweeks and ZiMining Reporter Amanda Mavhaza (AM) sat down for interview with Togables Investment Managing Director who is also the Artisanal and Small Scale Miners Association National Chairman, Mt Blessing Togarepi (BT). For this and other issues read on. . .

AM: Being that prospective miners have to appear before a board in order to get a license, what are the implications for such on the mining industry?

BT: The Mining Affairs Board (MAB) will be chaired by the Permanent Secretary of Mines. All Chief Directors in the Ministry of Mines and Mining Development will sit on the Board, as well as at least two other Ministry officials recommended to the board by the Minister of Mines.

Such an arrangement in view of the past experience where companies could bid for mining licences without adequate capital, the creation of the board will make a provision for potential mining companies to demonstrate financial and technical abilities for mining and to disclose beneficial ownership when bidding.

Mining companies that were granted mining rights in Marange had no proven financial and technical capacities in diamond mining. In fact the efforts made by government to consolidate mining companies provide evidence of lack of capacity in the numerous diamond companies that were operating in Marange.

Moreso, there was concealment of beneficial ownership in those mining companies a situation which had devastating effects on Marange communities who had hoped to benefit from the exploitation of their natural resource.

And also, the “use it or lose it policy” will prevent accumulation of mining claims for speculative purposes and the Cadastre system which requires an Environmental Impact Assessment (EIA) to be undertaken before issuance of a mining title.

Investors holding claims will be forced to work on the ground and increase production in the mining sector.

The obligation for claim holders to submit work plans for review to the MAB every six months will improve accountability and transparency in mining titling. Section 27 of the Bill states that an exclusive prospecting licence shall not entitle the prospector to remove or dispose of any mineral except for purpose of having it assayed or for determining its nature and must get permission to do so from the Cadastre Registrar.

This provision is critical in stamping mineral leakages that have taken place in alluvial mining of precious minerals like diamonds.

However, the composition of the board weakens the oversight function of the Board and does not provide representation to diverse interests in the mining sector.

The Mines & Minerals Amendment Bill (MMAB) however violates the separation of power, an important pillar of good corporate governance as the Permanent Secretary of Mines is both the Registrar of the Mining Cadastre and chairperson of the MAB.

AM: Where there consultations from all stakeholders in the crafting of this bill

BT:The Mines & Minerals Act (MMA) was drafted in 1961 and enacted in 1965.

The attempt by government to amend the MMA in 2007 failed to go to parliament.

The Obert Mpofu driven draft mineral policy in 2013 was not adopted after receiving wide criticism during public consultation meetings.

The recently introduced Mines and Minerals Amendment Bill (2015) in its current form shows marked improvements from the previous Act.

However, the bill centralise power around the Ministry of Mines officials in making decisions in the Mining Affairs Board (MAB). The bill isolates other critical stakeholders like EMA, RDCs, CSOs and traditional leadership. This is in violation of section 13(4) of the constitution which obliges the state to ensure that local communities benefit from resources in their areas. Under the Traditional Leaders Act (Chapter 29.17), Traditional leaders have jurisdiction over communal land in terms of Environmental Economic Social and Cultural Rights (EESCRs) for the benefits of their communities. The RDCs are agents of development for rural communities through revenue collection for service delivery. The EMA is the regulatory agency in environmental health and protection. Community Based Organisations (CBOs) and Civil Society Organisations (CSOs) need representation on the Mining Board in view of the paramount role they play in providing checks and balances to operations of government. These human rights defenders have played a critical role in exposing rights abuses, opaque mining deals and other forms of resource plunder. The MMAB cannot adequately address issues of transparency and accountability in the mining sector if these critical players are not involved in decision making in the MAB.

One of the biggest limitations of the MMAB is the usurpation of powers of EMA by the Ministry of Mines in direct violation of section 73 of the new Constitution Amendment No.20 Act 2013. The Minister and his experts have been granted power to determine the best methods of mining to be conducted in any area including rivers, on surface and underground. According to the MMAB, standards for river bed mining are set by the Ministry of Mines not the EMA Act (Chapter 20:27) The government enacted statutory Instrument 92 of 2014 on environmental management which banned alluvial mining in river beds, banks, wetlands and any land within 200 metres of naturally defined banks. The ban followed disastrous river bed mining activities in Mazowe and Mutare Rivers which were threatening livelihoods of rural communities. The proposal to conduct riverbed mining creates a situation where government is violating its own laws. The provision of Safety, Health and Rehabilitation Fund (SHRF) in the bill to be administered by the Ministry of Mines is in competition with section 48 of the EMA Act which provide for EMA to collect revenue for environmental rehabilitation.

 The MMAB supersede section 95 and 96 of RDCs Act which provide for councils to charge levies on miners by according discretionary powers to the Minister of Mines to enforce compliance from mining companies. Several diamond mining companies in Manicaland reneged from paying levies to RDCs because RDCs have no power to enforce compliance. The net effect of revenue loss by RDCs has been that communities cannot derive development from the exploitation of resources found in their locality. Although section 85 of the MMAB provide compensation to injurious effects of mining activities for ground owners, it does not make it mandatory for victims of mining induced displacement to claim their dues before being relocated. Diamond mining companies folded operations without paying compensation to about 3 000 families displaced by diamond mining activities in Chimanimani and Marange between 2010 and 2016.

3. The government last year said they were embarking on a multibillion dollar roadmap for the mining industry, is this feasible given that they plan on enacting the Mines and Minerals amendment bill

Zimbabwe’s Mines and Minerals Act (MMA) was crafted in 1961, during the colonial era, under a context of repression of the black majority. The MMA supersede all other acts that underpin community development when minerals are discovered. Thus the law is not in harmony with Acts such as the EMA Act(Chapter 20.27,Rural District Act (Chapter 29:13) and Water Act(Chapter 20.24). The law is also not aligned to the new Constitution Amendment No.20, Act 2013 with respect to environmental rights, 73(b) (iii) which provides for the right to sustainable development out of use of natural resources. Policy disharmony and failure to adapt international best practices such as the Extractive Industries Transparency Initiative (EITI) in the MMA has contributed to the mismanagement of mineral resources and human rights violations. In other words an absence of a robust MMA law has meant that revenue flows have been affected; the economy has lost much needed development and increased the vulnerability of communities living in resource rich areas.

Presenting his budget in 2013, the Minister of finance Cde Patrick Chinamasa bemoaned the absence of transparency and accountability in the exploitation minerals as one of the key economic challenges facing Zimbabwe. He further raised concern over government delays in implementing policy reforms in the mining sector amid reports of leakages, smuggling, under invoicing and externalization of export proceeds.

Mineral production and revenue transparency in mining have been very limited and this has contributed to loss of taxes for the fiscus. The legislative amendment under the MMAB if aligned with the new Constitution Amendment No.20 Act 2013 will be the panacea to the fiscus loss. However, the MMAB should adopt the Zimbabwe Mining Revenue Transparency Initiative (ZMRTI) that compels companies to make their production and revenues a public record. This will enable both the state and citizens to monitor, curb mineral leakages and illicit financial flows. An absence of this provision in the past, non disclosure of revenue and production statistics increased smuggling and illicit financial outflows in Marange.

Furthermore, in order to promote community development the bill should enshrine local content policy clauses that compel mining companies not only to employ locals but to contract local enterprises in the procurement of goods and services. If incorporated in the MMAB, the local content policy will give life to local downstream industry in the mining sector. The MMAB should make it mandatory for mining companies to cede shares to Community Share Ownership Trusts (CSOTs) to ensure communities benefit directly from exploitation of their natural resources. The extraction of mineral resources in Zimbabwe has largely deprived communities of meaningful benefits because of policy gaps and opacity. The MMAB must align to chapter 14(c) of the new Constitution Amendment No.20 Act 2013 on devolution by compelling mining companies to remit levies to RDCs and shares to Community Share Ownership Trusts (CSOTs). The inclusion of local empowerment clause in the MMAB is critical if government is serious about empowering communities out of mining.