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Leaving No One Behind: Striking a balance between recovery and human rights in Zimbabwe’s mining sector

By Mutuso Dhliwayo & Cosmas Sunguro

Introduction

While the COVID-19 pandemic is primarily a health crisis, it has far reaching socio-political and economic ramifications. Serious economic impacts on the mining sector are likely to be increasingly evident in 2021. The focus for mining companies that weathered 2020 is now on recovery, stabilisation and eventual return to profitability. This cannot be at the expense of human rights and must take into consideration obligations of the private sector under the Sustainable Development Goals and the United Nations Guiding Principles on Business and Human Rights.

Mining companies can ensure they contribute towards just recovery by respecting human rights, especially workers and community rights. Just recovery seeks to build a new social contract. It does not focus on recovery and profitability at any cost, but recovery that is inclusive and sustainable. This requires a human rights-based economic recovery approach.

https://www.business-humanrights.org/de/blog/leaving-no-one-behind-striking-a-balance-between-recovery-and-human-rights-in-zimbabwes-mining-sector/

Mining is a central economic sector in Africa, with extractive industries constituting nearly two thirds of exports from 2001–14—oil and gas alone accounting for close to 50% of total exports. This key economic cog, deemed “essential” and exempt from national lockdowns in many countries, has led one Zimbawean union to demand a COVID-19 risk allowance for mine workers – considered foot soldiers of the nations economy as other industries lockdown. While the focus of this blog is primarily on Zimbabwe, it is a microcosm of what is happening in a number of African countries dependent on mineral resources to power economic recovery and development. Forecasts show that African countries will experience a 3-8% decline in GDP between 2020 and 2021.

Just recovery: pitfalls to avoid

Retrenchment of employees

A number of mining employers have begun “casualisation” of their workforce, a damaging process which allows companies to cash in on high unemployment in Zimbabwe, where the economy is highly informal. This has witnessed workers receiving limping contracts or in some cases not signing a contract at all. This insecurity can cause further issues if workers are involved in accidents, where their lack of contract can obstruct receipt of compensation. Recently Anjin, a Chinese diamond mining company operating in Chiadzwa diamond fields in Marange, made workers sign an ordinary paper which appeared to be, but was not a contract. According to the Labour Act, a payslip should include the full name, work number, rate and indicate any deductions. Lack of a proper contract is a violation of a worker’s constitutional rights and puts workers at greater risk.

Long working hours and or double shifts

Mining companies can achieve their production targets while observing mining regulations, which mandate an eight hour shift. Furthermore, studies have shown production decreases as the number of work hours increase and concentration declines. Despite this, there are reports of overworking by up to 12 hours per day. Fatigue can increase risk of serious accidents, resulting in injury or worse. Following the President’s recent call that “Zimbabwe is Open for Business” and ongoing plans to reach $12 billion in mineral revenue by 2023, the country has been wooing investors in a bid to boost economic recovery. Some of these companies are notoriously irresponsible, with the pandemic increasing opportunities for irresponsibility. According to the National Social Security Authority (NSSA) there is an increasing number of workers being injured at the work place.

Using salaries as bait to increase production

Employers are realising the easiest way to prop up production is to increase salaries. But while money can be a motivator, it cannot come at the expense of health and safety. As working hours are increased, workers are convinced their rewards will increase too. According to the Labour Act, overtime is full time and half and double on Sundays. However, not only can sustained overtime compromise the quality of work and the health of workers, some unscrupulous employers are failing to honour their obligation to pay.

The ongoing rain season has also seen a rise in the number of mining accidents, especially within the artisanal and small scale (ASM) mining sector. We have witnessed cases of mining shafts collapsing, with miners waiting weeks for rescue. To recover lost time and production, a balance must be struck between profits and workers health and safety. Profits have to be realised in an ethical and just manner.

PPE and efforts to contain COVID-19

It is a basic requirement for employees to be provided with proper personal protective equipment (PPE). As profit maximisation is prioritised, chances are high that costs will be cut in the purchasing of PPE, either through the procurement of poor quality materials, or in some cases none at all. Unfortunately, cases of this already exist. Some companies failed to carry out COVID-19 tests or provide sanitiser or facilities for hand-washing. Companies should not cut corners and expenses by compromising employee access to protection, instead they must follow World Health Organisation guidelines and ensure they fulfil workers’ rights as guaranteed in section 65 of the Zimbabwe Constitution.

Impact on communities

In some communities, companies are relied upon for water sanitation. Arda Transau in Manicaland, was recently caught in dispute with ZCDC, after it indicated it could no longer afford to pay rates for water reticulation by the Zimbabwe National Water Authority. Consequently, the right to clean and safe water as provided in section 77 of the Constitution was infringed and only restored after ZELA intervened through litigation.

Conclusion and recommendations

The mining sector has been one of the hardest hit by the pandemic. Yet, even in better times it’s reputation with human rights, especially environmental, economic, social and cultural rights, has been very poor. As Zimbabwe, and the mining companies flocking to and operating within it all recover from this pandemic, it is imperative for corporations and their investors to recognise the urgent need to put respect for the human rights of workers and communities at the heart of their economic recovery plans and learn from the pitfalls outlined above. This means:

  • Fair worker contracts, hours and remuneration.
  • Access to health and safety equipment, including COVID-19 related requirements.
  • Ongoing corporate social responsibility action and respect for community rights.
Image by Andrew Bogrand
https://www.business-humanrights.org/de/blog/leaving-no-one-behind-striking-a-balance-between-recovery-and-human-rights-in-zimbabwes-mining-sector/

Litigation

Strategic Litigation against Public Participation (SLAPP) suit and Environmental Rights Defenders: Mineral Sands Resources (PTY) LTD and Others vs Reddel and Others

Introduction

On February 09, 2021, the South African High Court sitting at Western Cape delivered a milestone ruling on the protection of Environmental Rights Defenders (ERDs) against Strategic Litigation and against Public Participation (SLAPP) claims. In the Mineral Sands Resources (PTY)LTD  and Others vs Reddel and Others[1] case, the High Court upheld the SLAPP suit defence raised by Environmental Rights Defenders that  the claim was actuated by the desire to silence the voice of the defenders, thwart their freedom of expression and abuse the court process.[2] The purpose of this article is to examine the decision by the High court and make it more accessible and understandable to Environmental Rights Defenders in Africa The article explains the ruling’s context and content. Further, it explains what the decision mean to Environmental Rights Defenders. The article argues that the ruling shapes how SLAPP suits should be dealt with in Africa as the ruling carries some lessons for ERDs and Judiciaries  in Africa.

 

Context and Content of the Case

SLAPP suits happens to be one of the major emerging threats to environmental rights activism and participation in Africa and the world at large. This is becoming more evident in Africa in the face of globalisation and multinational companies in the Extractives Industries, Oil and Gas. Businesses prefer to operate in an environment where they are not held accountable. When questioned the recent trend has been to abuse the court process through bringing in SLAPP suits.  SLAPP suits have been defined as ‘’meritless or exaggerated lawsuits intended to intimidate civil society advocates, human rights defenders, journalists, academics, and individuals as well as organisations acting in the public interests.”[3] They are litigated into silence by corporations and often drained of their resources.[4]

In this case two mining companies that are involved in the exploration and development of major mineral sands in South Africa (Tormin Mineral Sands project and Xolobeni Mineral Sands Project) sued ERDS for defamation. The Environmental Rights Defenders sued are Reddell, Davies and Cullanan who are environmental lawyers. The company also sued Cloete, Dlamini and Clarke who are community activists. The ERDS were sued for defamation in the sum of R 14,25 million, alternatively the publication of apologies. The two companies alleged that the defendant’s activists throughout their advocacy initiatives exhibited in the form of lectures, discussion panels, books, and opinions in which they were criticizing the mining operations and activities of the companies uttered defamatory statements. In essence, the companies wanted monetary compensation or an apology for being criticized by the activists. The ERDS in turn raised two defences to the claims. In their first defence the ERDS indicated that the claims raised by the mining companies was an abuse of court process motivated by the desire to silence them from public participation. They further indicated that the claim was meant to violate their freedom of speech. The second defence raised was that the claim by the mining companies was bad in law. The court dismissed the second defence and dealt comprehensively with the second defence. It is also the second defence that is the centre of this discussion.

The Ruling of the Court and the Protection of Environmental Rights Defenders

The Court came to a finding that this litigation was a well calculated strategy by the mining companies to silence the activists. The Court highlighted that damages claimed by the mining companies were not realistic and exorbitant as the was never an intention to get monetary compensation   but to put a financial burden on the defenders. The court further noted that public participation is a key component of any democracy and that individuals and Non-governmental organisations must have the freedom to debate and air their views on environmental issues and sustainable development in their society. The High Court stressed the point that corporates should not be allowed to use the law as a weapon to silence citizens from public participation. In the end the court was satisfied that the claim by the corporates fits the DNA of a SLAPP suit.

This decision constitutes a watershed for the protection of environmental rights defenders against the SLAPP suits. This decision shows progressive jurisprudential development in recent times on how courts should deal with SLAPP suits. There is no doubt that the ruling constitutes a leap forward in shaping the narrative which protection courts   should give to ERDS.  If environmental rights defenders are to be protected there is need to strike a balance between the need to ensure access to justice and the promotion of rights such as freedom of expression and public participation. Environmental rights defenders thrive in debates and public participation. They thrive in an environment where criticism and scrutiny of businesses on public interest issues is tolerated.

This judgment also sets the tone for corporations who would in the future use SLAPPP suits to silence activists. It deters corporations from the abuse of the court process for the purposes of violating the exercise of freedom of expression. The ruling serves as lesson to corporates to tolerate and accept criticism from the pubic as it is part of a democratic society. Corporates should create safe places that allow environmental rights defenders to thrive.

The High court in this case indicated that South Africa does not have a piece of legislation that specifically protects Environmental rights defenders against SLAPP suits. In its ruling the court highlighted that this can be exploited. Most African countries do not have SLAPP suit specific legal framework which exposes environmental rights defenders to abuse by corporations. This is particularly sad in Africa in this age of globalisation and multinational companies who have all the financial resources to take on SLAPP suits. It is hoped that African states will heed to the call by the court in this case and enact legislation to protect defenders. Such kind of legislation will enhance freedom of expression and participation. It will foster a culture of public debates and good governance as citizens will not fear being SLAPPED.

 

By and large, the article has briefly outlined the lessons that can be derived from the South African High Court decision. This case is a step in the right direction, and it is hoped that our courts in Africa will take a cue from this case.

 

END//

 

About the writer

Richard Ncube is a public interest environmental justice and human rights lawyer from Zimbabwe. He is currently studying for his LLM at the beautiful and prestigious University of Sussex in UK courtesy of arguably the best scholarship in the world (Chevening). His interested in environmental law, climate change and Business and Human rights.  

 

 

 

[1] 7595/2017.

[2] ibid.

[3] Mineral Sands (n1) 21.

[4] ibid.