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ZAMI@10: Unpacking Alternative Mining Indaba (Concept and History)

By Dr Tinashe Gumbo

10 October 2021

 Reflecting in Celebrations

From 3 to 8 October 2021, Zimbabwe’s civil society, churches and their key stakeholders in the natural resources governance, gathered in Bulawayo, for the 10th edition of the Zimbabwe Alternative Mining Indaba (ZAMI). It was an event characterized by songs, dance, reflection sessions and launch of various campaigns on natural resources governance.

The process ran under the theme “Amplifying Community Voices for Improved Accountability and Transparency in Natural Resources’ Governance in Zimbabwe”. The 2021 edition was critical as it was a moment for the conveners and their stakeholders to reflect on the journey that had been travelled in the last decade.

While, I make reference to some specific sessions of the 2021 ZAMI, in this piece I attempt at unpacking the Alternative Mining Indaba (AMI) concept for the benefit of our citizens who have not been directly involved in this process. The article is also a contribution to my blog page. Mukasiri Sibanda, the Zimbabwe Coalition on Debt and Development (ZIMCODD) Board Chair, a key figure in the AMIs, argued during the 2021 ZAMI that, “blogging builds the power to influence”. He has continued to challenge activists to blog, and indeed, I am complying with his “command”.

 AMI Conveners in Zimbabwe

The AMIs in Zimbabwe are being speared headed by the Zimbabwe Environmental Law Association (ZELA), Zimbabwe Council of Churches (ZCC) and ZIMCODD with direct technical support from some national and regional organisations such as the African Forum and Network on Debt and Development (AFRODAD), Economic Justice Network (EJN) of the Fellowship of Christian Councils in Southern Africa (FOCCISA). Other technical partners who have become critical players in AMIs include the Transparency International Zimbabwe and Publish What You Pay. International civic and ecumenical organisations have also remained key in supporting the process.

Yet, the process has birthed many community based organisations (COBs) and new networks established. As of 2021, the following have become key stakeholders in the AMI processes: Government Ministries; Parliament of Zimbabwe; labour; various CSOs (youth, women, people with disabilities); artisanal miners; traditional leaders; arts; local authorities; media; private sector; academia and research institutions.

 Key Focus Areas for 2021

The just ended ZAMI was punctuated with side (and main) sessions that focused on specific topical issues such as:

  • The extraction of oil and gas;
  • Debt, tax justice and illicit financial flows;
  • Extractive Industry Transparency Initiative (EITI) and labour
  • Mining and inequalities;
  • Land use and conflicts in mining communities;
  • Stewardship of the environment;
  • Litigation and defence of human rights in the natural resource governance;
  • Artisanal mining and promotion of peace;
  • Inclusivity in mining sector and
  • Faith leaders monitoring of the extractive sector among others

However, the meeting also took time to reflect on the achievements, limitations and prospects of the AMI going forward. Indeed, after ten years of activism, activists needed to look back and confirm if they were making any progress.

 An Activist who studied Activism

As an “activist who studied activism and continue to practice activism”, I was privileged to participate in the 10th edition of the ZAMI. I managed to connect (and reconnect) with others in this “activism business”. Furthermore, as someone who aspires to remain rooted in this unique form of activism, I humbly accepted an invitation from the ZAMI organisers to present on some key existing and emerging mining issues. Certainly, such an opportunity would inform my ongoing study of natural resources governance in Zimbabwe.

I discovered that a lot is happening in the mining sector: new issues that require academic, policy maker and activists ‘attention have emerged. I was one of the discussants in a side session that focused on EITI and labour with a particular interest in the role of mining companies in the implementation of EITI. I argued for a more inclusive and comprehensive definition of the “civil society, mining companies and Government and the scope of EITI”. The current definition of civil society seems to leave out key players such as social movements and other community based organisations (CBOs). Furthermore, the definition of mining companies does not give room for the consideration of those where Government has a stake. The scope of EITI also does not give much attention to some important relevant matters regarding gender, local content development (LCD), corporate social responsibility (CSR) and labour (conditions and abuses of workers). Reader, a separate discussion on this matter will be attempted.

Below, I now focus on defining the AMI (the concept and its historical development) and attempt at hinting on some of its achievements, challenges, and opportunities associated with it. This piece is directly informed by Gumbo (2020)’s Chapter 8 of his project entitled “Community-Based Activism and Local Content Development: The Case of Platinum Mining Communities in Zimbabwe” (Available online).

 An AMI as Community Activism hence “Double Movement”

Gumbo (2020) argues that an AMI is a form of community activism on natural resources governance. The AMI concept was born as a countermovement to the ongoing Mining Indaba that is held annually in Cape Town, South Africa by the mining companies. For Gumbo, an AMI is actually a “double movement” (see Karl Polanyi, 1944) where communities are reacting to the effects of market liberalism that has continued to negatively affect host mining communities in Zimbabwe and elsewhere in the world.

It had been realised that the mining indabas were only meant for the capitalists who meet to strategize on how to maximise profits from the mining sector (Moreblessings Chidaushe, Norwegian Church Aid, Interview, 9 August 2018). In the same interview, Chidaushe argued that the mining companies plan for the mining of resources, yet, the host mining communities who bear the impacts of mining both socially and environmentally were (are) not part of that discussion. The companies will also invite African governments whom they “manipulate due to their compromised positions” regarding foreign direct investment (FDI) where they (governments) desperately need assistance hence acceptance to some unbearable mining conditions which affect their people. Moreover, participation at the Mining Indaba calls for one to pay more than one thousand United States Dollars (at least by 2018), a figure that cannot be afforded by the majority of citizens who may be interested in attending the indaba.

Thus, in 2010, the civil society organisations (CSOs) in Southern Africa teamed up and came up with an idea for an alternative platform for the ordinary community people to discuss issues that affect them with regards to mining activities (Gumbo, 2020). The CSOs in the region received technical support from international organisations led by the Norwegian Church Aid (NCA). The AMIs became annual events with an international one being held in Cape Town, parallel to the Mining Indaba. The concept has been cascaded to national, provincial and district platforms. Hence it has become a movement with a powerful voice that is able to challenge the international mining corporations which enjoy global support in terms of their policies (said Mukasiri Sibanda, then a ZELA Program Officer, Interview, 10 November 2016).

Since 2012, ZELA, ZIMCODD and ZCC adopted the process at provincial and national levels and in 2016 district platforms were created. I am proud to have been a key figure in the conceptualisation of the District Alternative Mining Indabas (DAMIs) when I was a Program Officer at ZIMCODD with our first one being convened in Penalonga while ZELA did the same in other different districts of operation then.

 The three organisations, managed to establish a Steering Committee which looks into the planning, organisation and convening of the annual processes at district, provincial and national levels. The committee members are also key at international level where they are involved in Cape Town processes for the international edition. The Committee is also responsible for ensuring that recommendations adopted at different AMIs are followed up for their implementation by relevant stakeholders. Thus, the 2021 ZAMI marked the 10th anniversary of the platform in Zimbabwe.

 AMIs: What For?

The objectives of the AMIs are replicated from international to district platforms. The objectives of DAMIs, PAMIs and ZAMI are directly informed by the original ones agreed upon when the idea was first muted.  Mandla Hadebe of the EJN, explained during the 2021 ZAMI that the global goal of the AMI platform is to present an alternative voice, the community voice, to that of corporates who meet annually during the Mining Indaba.

 Thus, the AMIs at different levels, through effective advocacy, will enhance transparency and accountability in the governance of natural resources leading to an Africa that extracts minerals in a more sustainable way that also ensures equitable distribution of resources among present and future generations.

Gumbo (2020), summarises the objectives as shared by the Steering Committee members as follows:

  • To provide a platform to empower communities affected and impacted by the extractives industries to reclaim their rights through the formulation of alternatives
  • To advocate for transparent, equitable and just extractives practices in the management, governance and distribution of national resources through policy and legislative reform
  • To create meaningful decision-making processes for communities advocating for just national and regional policies and corporate practices
  • To provide space for engagement for the interfaith communities, governments, CSOs and private sector to share information on natural resources

The mining sector is critical in Zimbabwe hence the communities needed the capacity to speak on their own regarding the governance of their natural resources. The AMI provides that platform where the communities engage the policy makers in a safe environment. The platform also provides solidarity among the affected communities of Great Dyke, Manicaland and other areas where mining activities are felt. Thus, issues that emerge at district level are channelled to national platforms via the provincial AMIs.

 Methodological Issues

Methodologically, the AMIs allow experts to share their perspectives on mining; government departments to update on critical policy matters; community members to share their experiences with regard to mining activities while the parliamentarians would also do the same with regards to the legislative frameworks. Local authorities and CBOs also have the opportunity to amplify their voices regarding key issues such as the CSR and LCD aspirations, taxation and others. Traditional leaders also come in to discuss the effects of mining on their cultural and religious lives particularly issues to do with prior informed consent which has remained a major concern on their part. The CSOs in their different forms share their experiences with mining (research, policy alternatives, engagement reports and other products are shared). Mining companies who attend are expected to give feedback regarding their policies on the various existing and emerging issues like taxes, CSR and LCD initiatives. Artisanal and small scale miners engage different stakeholders regarding their specific concerns.

 Break away (side) sessions allow participants to concentrate on specific areas of interest in a more detailed approach. Outcomes from such sessions inform the final resolutions that are channelled to the next phase of the AMIs. District and provincial AMIs deal with specific mining issues in the respective communities and this informs the engagement strategies in those areas. The recommendations made at every ZAMI (national AMI) are followed up with specific stakeholders and progress reported in the next meeting of the following year. Thus, testimonies coming from the communities shape the agenda of the AMI at international level.

During the 2021 ZAMI, I was privileged to represent the Steering Committee through delivering closing remarks. I certainly emphasised the fact that when the AMIs started, CSOs and churches were confrontational in terms of their methodologies. However, ten years down the line, the AMI is now a platform for progressive dialogue among CSOs, churches, parliamentarians, Government Departments, traditional leaders, local authorities and others. Strong working relationships have been built for fruitful engagement.

What is in the AMI Themes: Few Samples

Each AMI will be hinged on a particular theme that is agreed upon by the Steering Committee in consultation with communities and other stakeholders. The annual themes for the AMIs emphasise the need to make mining one of the sectors that benefit all the stakeholders as well as an encouragement for engagement (Gumbo, 2020).

 For instance, the 2016 national AMI theme was ‘Mining Sector Reforms: A Call for Economic, Social and Environmental Justice’ (2016 ZAMI Programme Report). The theme was inspired by the quest to influence then ongoing legislative and policy reforms in the mining sector and ensure that there was a conducive operating environment for mining sector to make contributions to the economy well.

For 2017 the theme was ‘Responsible and Accountable Governance of Minerals ’. This emphasised the need for good governance of Zimbabwe’s mineral resources while it also called for stakeholders to be responsible in their business.

 For 2018 the theme ran ‘Accountable and Transparent Governance of Mineral Resources: Safeguarding Development Interests of Local Communities in Mining Sector Reforms ’. This was meant to allow the stakeholders to interrogate the ongoing mining policy and legal reform processes.

The 2021 one as already given in my introduction of this article, further pushes for the amplification of the community voices on natural resources governance. This explains why EITI discussions dominated most of the sessions during the 2021 ZAMI.

Therefore, the platform asserts its authority as a progressive multi-stakeholder platform that facilitates discussion of the sector and proffering policy, legislative and programming interventions to promote sustainable mineral resources exploitation (2016 ZAMI Programme Report, cited in Gumbo, 2020). Most importantly, it allows the ordinary community member to engage the key stakeholders in the sector on critical matters affecting him or her. Thus, themes shaped the focus for each AMI.

 AMI Achievements

The 2021 ZAMI was a moment of reflection by the delegates who gathered at Holiday Inn in Bulawayo for the whole week. By the way, “COVID-19 nearly muted our voices but we innovatively kept the fire burning” (I emphasised this in my closing remarks for the ZAMI).

From 2020, thousands of delegates attended the AMIs virtually while smaller numbers anchored the processes physically. Ironically, this innovation allowed more people to follow proceedings compared to previous ones when attendance had been limited to those on the scene. What a great opportunity brought about by the COVID-19? A challenge turned into an opportunity for AMIs!

 During the 2021 ZAMI, a session to reflect on the journey travelled along the ZAMI road, presided over by Hadebe (EJN) revealed that indeed, there is more to celebrate than to mourn about. While contributing during one of the side sessions that focused on EITI and trade unions, Tatenda Mombeyarara, the ZIMCODD Northern Region Chairperson came up with superb description of the AMIs in general,  when he said “AMIs have become the universities for our ordinary people…”

 Indeed, the platform has been an educative and informative one. On the part of faith leaders, the platform provide them with an opportunity to cultivate a culture of dialogue among Zimbabweans. Through theological reflections, the Church leaders have also continued to emphasise that citizens should be good stewards of God’s resources.

 Bishop Ignatius Makumbe of the ZCC had this to say in one of the theological reflections sessions “While others may say silent is golden, indeed, when our resources are threatened by poor governance by some of us, then silence becomes costly…”

Gumbo (2020) also attempts at tracking the achievement of the AMIs in general (at least by 2020) and the following were noted:

  • The main achievement of the AMI platform is its ability to replicate itself at district, provincial and national levels beyond Cape Town. Now we talk of District Alternative Mining Indabas (DAMIs); Provincial Alternative Mining Indabas (PAMIs) and ZAMIs.
  • Enhanced engagement among stakeholders on critical natural resources matters: The methodology moved from confrontational approach to dialogue and this proves to be working as stakeholders have converged around the issues affecting our communities.
  • Traditional leaders and local communities indicated that due to the AMIs, their capacity to comprehend natural resources issues has increased and they are now able to engage at any platform
  • Relationships built among communities, local authorities and “some” mining companies have led to convergence around the real needs of the host communities when it comes to CSR and LCD programmes
  • The AMI processes saw the emergence of a considerable number of CBOs working on natural resource governance. These are found across the country but mainly concentrated in Manicaland and in the Midlands (along the Great Dyke belt) provinces.
  • Gumbo (2020) closely tracks the work of three CBOs namely the Turf Resource Conversation Trust (TRCT); Shurugwi Community Development Trust (SCDT) and Mhondongori Resource Community Development Trust (MRCT). Thus, one of the AMIs’ major achievement is the cultivation of community activism around natural resource governance.
  • The agenda of the AMIs has been consistent and Gumbo (2020) notes some important victories from the process. These include the amplification of the need for some legislative and policy reforms to address issues of CSR, LCD and farmer-miner conflicts

 Notable Gaps and Opportunities

The 2021 ZAMI delegates noted the following gaps that still need attention:

  • While issues of transparency and accountability have been on the agenda, certainly, more is still expected from the mining companies and the Government-this remains an opportunity for the AMI players to continue working on. The Parliamentarians who attended, notably the Chairperson of the Parliamentary Portfolio Committee on Mines and Mining Development, Hon Edward Mkaratigwa was at pains to explain why the domestication of the EITI process just vanished with the conclusion of the Unity Government. The Parliament was challenged to ensure that processes initiated are seen through to their conclusion as parliamentarians have an oversight role over other State Arms.
  • Corruption and illicit financial flows have also remained a thorn in the skin of Zimbabwe. A lot still needs to be done in this area. The Chairperson of the Parliamentary Committee on Defence, Security and Home Affairs, Hon Brigadier General Rtd Levi Mayihlome actually lamented and hoped that “one day we will have an ethics of accountability in Zimbabwe).
  • Labour issues have also not been getting the attention they deserve. Poor working conditions, abuses by mining companies and poor remuneration need to be looked at in future AMI processes. The delegates that represented labour shared their sad experiences where they are exposed to all forms of abuse by their employers in the sector. The upcoming AMIs need to work towards influencing an expanded EITI scope.
  • The AMIs also need to closely check the status of the Community Share Ownership Trusts (CSOTs). The previous AMIs celebrated this initiative but along the way, efforts around it faded for both the AMI players and the Government itself.

 About the Author

Dr Tinashe Gumbo, is the Team Leader, Council Programs at the ZCC. He studied the AMIs as part of his PhD. At some moment, he worked at the ZIMCODD as the Policy Research and Advocacy Program Officer. He writes this piece in his personal capacity and is responsible for any interpretation or misinterpretation of any given facts. For feedback and interaction, he can be contacted on Mobile/WhatsApp +263 773218860; Email: tinashegumbo@gmail.com; Blog: tinashegumbo.wordpress.com; Twitter: DrTinasheGumbo1

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Who is to blame the EMA, community, or the company?

Compiled Susan R.Muchena-Marange Development Trust

 

20 September 2021

 

Where ever you go in any community in Zimbabwe most communities where mining is taking place have their fair share of problems that are mainly affecting them day and night and one turns to wonder where the government is or the Environmental Management Agency (EMA) are to stop this environmental degradation,water pollution,dust pollution.  One also wonders if such mining operations could have had environmental impact assessments (EIA) undertaken considering the destruction brought about.

 

On the 16th of September there was a meeting organized by Zimbabwe Environmental Law Association (ZELA) where EMA was invited to meet communities from Marange and Chimanimani.From the teachings by Ms Alice Rutsvara EMA Manicaland’s spokesperson explained that EIA is a process of evaluating the likely impact of a proposed project or development taking into account inter related socio economic,cultural and human impacts both beneficial and adverse. The process must promote public participation through adequate community consultations. These consultations should involve all community representatives including women,children,youth ,elderly,disabled,churches,health,school and the local leadership .These meetings are spearheaded by the consultants who should explain fully the project to the community thus the community then contributes their expectations, so that they benefit fully instead of bearing the burden of irresponsible operations. She then asked why the do we blame EMA yet its the duty of the community to contributes what they want?

 

The local leadership, Mutape Chibuwe acknowledged that to some extent they are to blame as leaders. These consultants usually come without giving then time to discuss the project with the community thus they end up signing, without full knowledge of the project itself yet that is the important part which can improve their community. The other issue is poor communication of the message and even the language most community members find it difficult to understand. Distance is another barrier that has forced community members not to attend but since EMA do the ground truthing on who attend the meeting, they should state standard of a public consultation before issuing the EIA.

 

The communities acknowledged the importance of attending the consultation especially the EIA consultation which helps both the company and the community to explore the benefits and the challenges of the project, including coming up with ways on how to mitigate those challenges.Big projects like mining,road construction or dam construction are expected to have EIAs as it helps the practitioners and the government to measure the environmental damage. Many questions were raised on why a reputable company like ZCDC has been operating without an EIA certificate in the eyes of the EMA, the environment watchdog. After realizing that Zimbabwe Consolidated Mining Company was now mining in Tinoengana village very close by the houses causing dust noise and water pollution, the Marange Development Trust (MDT) decided to engage the company but nothing tangible was discussed thus we ended up engaging EMA.

On engagement with EMA we later realised that this diamond company has no EIA certificate, EMA failed to produce the certificate as we explained that it is the on the Zimbabwean constitution section 62 subsection 2 it clearly states that; Every person including the Zimbabwean media has the right to access to any information held by a person,including the state in so far as the information is required for the protection of a right but it was clearly that ZCDC did not have it yet it was violating the right to clean and safe environment ,right to clean safe and portable water.(Violation of rights on chapter 4).Small scale miners operating without EIAs are arrested like in Penhalonga and taken to court.Marange Development Trust after consulting ZELA about the situation, they approached the courts. It was noted that ZCDC breached the law by mining without a license from EMA but the company argued that it should be allowed to continue to operate until EMA approved its license application. Under the Zimbabwean law a mining operation can only start operating after carrying out an EIA process of its project which is approved by EMA. On August 2017 a ruling was passed by Judge David Mungota which ordered to ZCDC to desist from conducting operations in Marange until it has conducted an EIA process in accordance with the law.The questions still stands How far is ZCDC with the EIA process? If it has the EIA certificate which community was consulted and involved and what are their expectations towards sustainable development??

 

From the discussion it clearly showed that EMA was also neglecting the communities by letting companies mine without EIAs and some companies feel paying fines is cheaper that protecting the environment.We later agreed in the meeting that it is our duty as a whole to safeguard the environment for the future generations by having EIAs to promote sustainable development by measuring environmental impacts likely to be caused by the projects. The community should work hand in hand with EMA to protect the environment as the community knows their environment and can assess better if any changes arise.

 

In conclusion, EIAs are enforceable documents,thus we should as communities participate fully on the process and it is a requirement to mining companies.No company should be allowed to mine without an EIAs as this is the only document that helps us to have a good relationship with the company before it starts its operations.EIAs are mandatory whilst Corporate Social Responsibility is voluntary .

 

 

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Mutoko villagers living in fear of possible eviction

Mutoko’s Karimazondo and Chingamuka villagers are living in fear after ‘some’ Chinese officials informed them that they will be relocated to pave way for mining operations. The community members made efforts to seek clarity from the investors and local authorities on the impending relocations but to no avail.

The Zimbabwe Environmental Law Association (ZELA) has since written to the Ministry of Mines and Mining Development requesting information on the impending Mutoko relocations in terms of Section 7 of Freedom of Access to Information Act 1 of 2020 Chapter 10:33.

It is important to note that Mutoko community members have a right to public participation, access to information and the right not to be arbitrarily evicted as provided in terms of Section 62 and 74 of the Constitution as read with Section 4 of the Environmental Management Act. The country has taken progressive steps by putting in place legislative measures aimed at promoting sustainable development and protection of environmental rights. In essence the legal framework also provides for public participation in environmental governance for specified projects through which communities and other stakeholders are consulted as a way of assessing the likely environmental, economic, social and cultural impacts of projects. In Mutoko’s case, this has not yet been done.

Stay tuned for more updates as we work together in Creating a legacy in using the law for environmental justice and sustainable natural resource governance.

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ZELA Statement on Government’s move to unbundle Fidelity Printers and Refiners (FPR)

18 August 2021

During the presentation of the Mid Term Budget Review on the 29th of July, Minister of Finance and Economic Development, Professor Mthuli Ncube noted that the Government of Zimbabwe is moving ahead with its plans to cede a controlling stake in the country’s sole gold buyer and refiner, Fidelity Printers and Refiners (FPR) in an effort to boost compliance levels in the trading of gold. The Government intends to offer a 60% stake in the FPR’s gold refinery and marketing arm to large-scale gold producers, major gold buying agents and small-scale producers through their associations. According to the Government, a three-year average delivery of gold to Fidelity will be used by the Reserve Bank of Zimbabwe (RBZ) to determine its offer to the various players. Recently, the Reserve Bank Governor clarified that changing of the shareholder structure in FPR will not remove FPR’s monopoly on the sale and exportation of gold.

The move by Government to unbundle FPR can be a game changer in the country’s gold sector, it has the potential to improve local beneficiation, investments in the gold sector and producers’ compliance with gold trading rules. Furthermore, by allowing private companies to be part of the gold refinery process, the country stands a good chance to comply with the London Bullion Market Association (LBMA) on responsible sourcing. The LBMA established the Responsible Gold Guidance for Good Delivery Refiners to combat systematic or widespread abuses of human rights, to avoid contributing to conflict, comply with high standards of anti – money laundering and combating terrorist financing practices.  Being an LBMA accredited refiner provides an assurance that the country’s practices and processes in gold refineries are aligned to the requirements of the Organisation of Economic Cooperation and Development (OECD)’s guidelines on Responsible gold sourcing. Compliance with OECD requirements on responsible sourcing and LBMA accreditation will ensure that our gold exports fetch the highest return on the international market. The unbundling of FPR could release resources needed for the government to comply with the LBMA’s requirements on responsible sourcing if adequate legislation is put in place for the private companies to comply with. The privatisation of the gold refinery process should therefore be linked to mechanisms to enhance responsible sourcing activities such as gold traceability initiatives.

The country lost its LBMA membership in 2008 after it failed to meet the prerequisite gold production levels. For the country to be re-admitted into the LBMA, it needs to be producing 10 tonnes of gold per year. Officially, FPR sells its gold to international markets mainly through South Africa and Dubai refineries. The value that the country acquires from selling its gold to Rand Refineries in South Africa is lower than the value that it would get if the gold export stocks were to be sold directly to LBMA and one of the major reasons is that these refiners charge for the refinery process which they do on the country’s gold exports.   Basing on FPR’s gold production and deliveries for the past few years, it is now very easy for the country to re-join the LBMA. The Government should be persuaded to get re- admitted into the LBMA as this will attract international investments and possibly remove the ‘Pariah State tag.’

The unbundling of FPR must be accompanied by comprehensive due diligence processes on the potential shareholders so that this opportunity to foster good management of gold revenue in line with section 298 of the Constitution is not lost. Using a three-year average delivery of gold to FPR as a key factor to be considered in choosing the companies to take up equity in FPR is not enough, given that the Government is incorporating the private sector in the management of gold.  Shareholders should be able to demonstrate that they are in position to comply with the best international standards on promotion of human rights including proposals to eliminate Illicit Financial Flows (IFFs) or adopt OECD guidelines on responsible sourcing. The Government might also consider including a condition that the shareholders should have a clean tax clearance certificate or evidence of a good human rights promotion record as part of its application to acquire shares in FPR. Such due diligence processes would enable the government to attract responsible investments into the gold sector and reduce risks of the government losing revenue from investors who may have a bad history of evading tax and being involved in illicit gold trade.

Moreso, the Government should consider making it mandatory for all shareholders who are going to take up equity in FPR to list on the Zimbabwe Stock Exchange (ZSE) or the Victoria Falls Stock Exchange (VFS). This will open a window for citizens to hold the companies to account on mineral revenue transparency since companies will be expected to publicly disclose their Environmental, Social and Governance (ESG) information in line with international best practices.  

During the Mid Term Budget Review presentation, Minister Mthuli indicated that 10 shareholders have offered to take up shareholding in FPR. However, names of these shareholders were not disclosed. There is an expectation from citizens that Government will share the names of the companies and their ultimate beneficiaries. This is necessary to remove suspicions that citizens always have that such mining deals are targeted to benefit the investors at the expense of the country’s development efforts. Currently, there are speculations that Freda Rebecca (now under Kuvimba Mining House) is likely to be one of the companies that will be considered to take up equity in FPR since it is one of the biggest gold producing companies in Zimbabwe. According to information that has been shared in the media, Government has a controlling stake (65%) in Kuvimba Mining House. However, this information cannot be verified by the public as there is no public disclosure of beneficial registry. Commendably, in January last year, Zimbabwe included beneficial ownership disclosure requirements in the new Companies and Other Business Entities Act [Chapter 24:31]. Under the new Company’s Act, companies are obligated to keep an up-to-date list of their beneficial owners and must frequently update the Registrar of Companies if there are any changes to the beneficial owners. However, the major challenge is that there is no public disclosure of the beneficial registry, a situation that may still cause corruption in the management of mineral revenue and money laundering to thrive.  As part of efforts to adopt international best practices on curbing corruption and improve extractive sector transparency, countries such as Nigeria and Zambia, for example, have embraced a public beneficial ownership registry in their laws.

More importantly, the Government should expedite its steps to adopt and implement international standards such as Extractive Industry Transparency Initiative (EITI) to address the transparency and accountability deficits in the mining sector. Adoption of EITI will help the country to fight the scourge of corruption by Government officials in the mining sector, improve rule of law, accelerate economic reforms, protect businesses’ investments, attract the much-needed Foreign Direct Investment and possibly trigger removal of restrictions.  

ENDS//

 Zimbabwe Environmental Law Association

“Celebrating two decades of promoting environmental justice through sustainable and equitable utilisation of natural resources and environmental protection.”

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Zimbabwe’s Mines and Mineral Amendment Bill: What is the status really?

Co-authored by Sandra Musonzah and Billian Matambo

Introduction

Touching base with reality, the silence on the Mines and Mineral Amendment Bill leaves us wondering whether it is ready or long forgotten? The Bill does carry strategic means to unlock the government’s potential to achieve the 12 billion mining industry and greater control over mining hurdles. To jog your memory, Zimbabwe is in the process of reforming the Mines and Minerals Act through the Mines and Minerals Amendment Bill. To summarize, the Mines and Minerals Act of 1961 is an outdated legislation with unlimited challenges which have been affecting the ability of the nation to realize maximum mineral resource beneficiation especially for the locals who are operating as artisanal and small-scale miners (ASMers).

The government of Zimbabwe overtime has made various attempts to amend the mining regulatory regime targeting the Mines and Mineral Act these efforts have not led to a final product being gazzeted. The Mines and Mineral Amendment Bill seems to have lost its momentum after years of constantly amending and strengthening it to resolve predominant challenges within the mining value chain. Since 2012 when the Mines and Minerals Act amendment started, the government have preferred to address some of the highlighted mining challenges using alternative means such as through policies and statutory instruments rather than endorsing the proposed Bill into effect. Finalisation and ensuring that the citizens ‘aspirations are incorporated in the Mines and Mineral Amendment Bill will assist in defining shared value and national vision for the mining sector. By addressing cross cutting issues within the extractive sector, set benchmarks within important stakeholders (like community-based organisation, civil society organisation, traditional leaders) to safeguard against unsustainable mining and promote coherence in the laws, policies and the implementing institutions.

Progress in the Mines and Mineral Amendment Bill

Further, the current talk show focus in the mining industry corridors has shifted from the ‘Bill’ to the Statutory Instruments to formalize artisanal and small-scale mining (ASM). The soon to be gazetted Statutory Instrument aspires to ensure ASM are registered and enhance their opportunities to benefit from state resources. A great stride and we acknowledge Government’s efforts to some extent in their work to curb resource leakages and environmental challenges which are prevalent. Yet still the formalization of the ASM alone leaves a lot of loopholes to be adequate as we race towards the 12Billion economy, we expect comprehensive legal regulatory frameworks to address ASM related challenges. As community-based organisation (CBOs) we are surprised and shocked about Reserve Bank Governor Dr. John Mangudya ‘s comments this week that a statutory instrument shall be governing requirements for registration of ASM which is currently being crafted. Seems we have already forgotten the Bill which should also recognize ASM. The loophole which still needs to be addressed is that the Mines and Minerals Act does not give recognition to ASM an issue that should be addressed.

 

Importantly, the Ministry of Mines and Mineral Development must not cease pushing for the anticipated legal reforms enshrined within the Mines and Mineral Amendment Bill which also acknowledge ASMers as an important stakeholder to development discourse. The mining bill will also for the first time officially recognize small-scale miners, who produce more than 40 percent of Zimbabwe’s gold output, meaning that their operations will no longer be considered illegal. In addition, for ASM activities to efficiently contribute to sustainable development, they must be integrated into the formal economic system and with a stipulated Constitution legal recognition of ASM in Zimbabwe. The overwhelming informality of the ASM in Zimbabwe requires comprehensive reforms, and definitely the Statutory to be complemented with the Bill.

Key Takeaway

As resource rich communities, we advocate that the new amendment bill formalizes ASMers. This is going to benefit all relevant stakeholders in the whole mineral value chain. Formalization of ASM is going to

1) Close leakages such as illicit financial flows, since the markets will be open to every miner yet still offering competitive prices.

2) The ASM sector is outsmarting Large Scale Miners by almost 100% in terms of the gold delivered to Fidelity Printers and Refiners. This simply means that the country could earn more if legislative reforms are put in place to address formalization of ASM.

3) With formalization comes responsible sustainable mining and sourcing in the ASM sector that will save both the environment and hence healthy and safety of the ASMers who are losing their lives through unmonitored irresponsible mining.

It is also saddening to note that artisanal miners are also under threat from machete gangs especially in the Midlands Province and Mazowe District attributed mainly to claim disputes. We need laws that will permit decentralization of gold buying schemes. We call for the finalization of the Bill since it has the ultimate answer of safeguarding the miners from being used by allegedly complicit powerful politicians who are inciting them against each other through sponsoring machete gangs. The 100 tonne gold output underpinned with the12 Billion target by 2023 can be achieved if authorities put in place friendly mining policies and bills.

Conclusively Zimbabwe’s reluctance to modernize strong legal and policy framework and globally being connected with global best standards limit these positive benefits to come to light.

And AP-5e281203

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.

Lockdown not a time for CSOs to hibernate, but reflect and be creative

Despite posing many challenges, the lockdown, a move to stem the spread of COVID 19, must not lead to the hibernation of civil society actors. Under these difficult times, the lock down delivers a rare opportunity for civil society actors to deeply reflect and explore ways of achieving greater impact on the socio-economic justice front.

Several articles have been generated, all making a compelling case on how poor, but resource rich African countries are incapacitated to respond to fight COVID 19. Most of the articles concur, developed countries are struggling to cope but it can be an apocalyptic scenario for poor African countries.

The World Economic Forum (WEF) in its report warns “malnutrition and disease means COVID-19 could be more deadly in Africa than elsewhere in the world. And health systems in Africa have limited capacity to absorb the pandemic.”

All this evinces that civil society has a mountain to climb in its quest to ensure benefits from extractives cushion citizens from pandemics like COVID. Already, Mukasiri Sibanda, the Zimbabwe Environmental Law Association (ZELA)’s Economic Governance Officer argued in his blog “without brushing off Chinese Aid, where is money from our mineral wealth going?”

Because now is the time to reflect and explore, one area we believe civil society in Zimbabwe can leverage to increase transparency in the governance of extractives, is effective engagement with the office of Registrar of Companies. The Registrar of Companies registers companies and other business entities with a responsibility of making sure companies comply with the Companies and Other Business Entities Act.

More often, emphasis on revenue transparency overshadows the need to understand the DNA of behind mining activities. No wonder why the Extractive Industry Transparency Initiative (EITI), a global standard that elevates open and accountable management of the oil, gas and mineral sector embraced public Beneficial Ownership (BO) registry in its new standard. This goes beyond the numbers. The thrust is about telling a story of the real people who hide behind corporate masks to unfairly benefit through corruption and illicit financial flows.

Importantly, Zimbabwe which appears to have shut its doors on EITI, included a BO registry under the new Companies and Other Business Entities Act. Government’s move on BO registry was necessitated by the desire to comply with Financial Action Task Force (FATF) directives on curbing money laundering and finance for terrorism. A major challenge with the new BO requirement in Zimbabwe is that the BO register is not open to the public, note Anna Sophie Hobbi in her blog post Joyce Nyamukanda, Publish What You Pay Campaign (PWYP) campaign coordinator laments that “Space is closed for civil society to pivot the BO register for accountability purpose when the register is confidential.”

Interestingly, there are data morsels from the Registrar of Companies which the public can digest to improve the advocacy diet for the transparency and accountability in the mining sector. Such an initiative, perhaps, can help to mend the wheels of Publish What You Pay (PWYP) campaign in Zimbabwe. Government’s timid efforts on joining EITI has punctured the campaign.

What is even worse is that the mining transparency framework has not been aligned to the Constitution. Information which the campaign can feed on from the Registrar of Companies’ offices include company details of directors and physical address. On the surface, such information appears to be of less use on fuelling accountability demands. But a close and keen eye can unearth advocacy opportunities from such data.

Because a company is not a natural person, but a juristic person, its intelligences are its directors. Knowing the names of the directors enables civil society and communities to understand the identity of the company’s aspiration, motives and ethics. Knowing and understanding the person making decisions creates avenues for engagement. Such avenues include exploiting social capital, for instance, at church, sports club or bar.

A human touch to the struggle is important. If the director goes to the church, this is an opportunity to reach out to the pastor, for example, to bring out community concerns against the company he or she directs. Knowing the directors of a company shifts gears on engagement with the mining company which is largely focused on the management or other lower level employees.  The management is accountable to the directors who have a fiduciary duty to protect the interest of the company.

By profiling the directors of a company, civil society and communities can gain intel whether the directors have strong political ties or government officials are involved. Pending before the courts is a case in which the former deputy minister of higher education procured computers from a company he directed together with his daughters. What this case proves is, at times, without digging deeper, corruption red flags can easily be raised by gleaning simple publicly available records.

ZELA piloted this work in Mutoko and Marange under its community data extractors project. Malvern Mudiwa, from Marange Development Trust (MDT) made interesting observations after his interactions with the office of the Registrar of Companies in Harare. Malvern explained that “it is costly for a community member to travel to Harare to access the office of the Registrar of Companies.”

He argues “it is important community-based organisations (CBOs) to rely on official documents to cement advocacy initiatives with credible data rather than relying on hearsay.” His regrets were “we failed to access the any details on Mbada diamonds.”

Failure to access documents which are supposed to be publicly available can be an advocacy asset. It is a clear demonstration of the gaps between the law and practice. If such evidence is harvested from different communities and made public, it can jolt the Registrar of Companies into action as she/he becomes increasingly aware the office is being watched publicly.

For companies that are directly listed locally or international like Zimplats, the details of directors can be accessed from their websites. The challenge is that they are very few listed companies operating in Zimbabwe and the bulk of which do not have their own websites. This is also another research opportunity for community data extractors.

Aside from opportunities associated from accessing details of directors, knowing the physical address of the mining company civil society or communities want to engage with is also critical in many ways. A mere glance of the physical premise of the head office of the company can tell a lot in terms of the integrity of the company we are dealing with.

Obviously, we must not loose track of the old wisdom – don’t judge a book by its cover. It can be possible that a company may not be operating at the registered premise or have no legible name of the company at their premises. Simple walk in at the company head office can also create space for civil society actors and communities interact with the top management of the companies. The top management of several mining companies may not be operating at the mining site, but head quartered in big towns like Harare or Bulawayo.

From Malvern’s experiences, community data extractors must be empowered by PWYP to interact with the office of the Registrar of Companies, document their stories on how hard or easy it is to access the data.

Further, community data user stories can be generated to pick and reflect on variety of experiences from different community data extractors. PWYP is in the process of recruiting more members especially from Matebeleland and Midlands provinces. Having a clear value proposition, for instance, work members can do can help to manage expectations and reduce conflicts associated with workshopping opportunities.

COVID 19 is certainly causing mayhem for now, but civil society and communities must be forward thinking. Undoubtedly, strategies to mitigate the COVID 19 are critical. However, they must not drain the focus on the bigger picture. The Punctured PWYP campaign in Zimbabwe must using the lockdown opportunity to find innovative ways to mend its advocacy wheels. ZELA’s community data extractors programme, which drew energy from PWYP international offers interesting learning points for the campaign.

Tooling Parliament For Effective Mineral Resource Governance

By Byron Zamasiya and Mukasiri Sibanda

To better track impact of capacity building work with Parliament on promoting transparency and accountability in the mining sector, Zimbabwe Environmental Law Association (ZELA) jointly agreed with Parliament of Zimbabwe to come up with performance targets. This was agreed during a workshop facilitated by ZELA on Mining Fiscal Transparency and Beneficial Disclosure on Wednesday, 26 February 2020, at a local Hotel in Harare.

Participants included; the Registrar of Companies, legislators from the Parliamentary Portfolio Committees on Mines and Mining Development, and the Budget Finance and Economic Development, Civil Society Organisations (CSOs), representatives from the Office of the Auditor General (OAG), Zimbabwe Revenue Authority (ZIMRA), Media, and Civil Society Coalitions.

In this update, we focus on the action plans that emerged from the workshop, with special emphasis on engaging Parliament to promote mining fiscal transparency and accountability.

Tooling Parliament

Participants who attended the Mining Fiscal Transparency and Beneficial Disclosure Workshop  

CSOs are doing a tremendous job in building the capacity of Parliamentarians, therefore it is critical that they conduct performance appraisals to continuously evaluate the effectiveness of their interventions on the work being undertaken by legislators. To achieve this, the following points must be taken into consideration;

  • Parliament Portfolio Committees (PPCs) to share their workplans with CSOs
  • PPCs on Mines to share quarterly performance reports provided by Ministry of Mines and Mining Development.
  • A retreat is required to ensure that performance targets are jointly set out and performance enablers are enhanced.

In the interest of harvesting the low hanging fruits, it was discussed and agreed that the following issues must be raised in Parliament by members of the Portfolio Committee on Mines before the end of March 2020;

  • Progress on implementation of the Extractive Industries Transparency Initiative (EITI). Government, in 2019, revived its interest in joining EITI, a global standard that seeks to promote transparency and accountability in the oil, gas and mineral sectors. In case government is not keen on implementing EITI, legislators must push government to undertake piecemeal mining sector transparency reforms as required by the Constitution. For example, an Act of Parliament is required to guide negotiation and performance of mining agreemens (Section 315 (2) (c) to promote transparency, host, cost effectiveness and competitiveness.
  • Clear milestones are required for the computerization of the mining cadastre. Points to consider: How can a government that seeks to achieve US$12 billion annual earnings from the mining sector by 2023 fail to provide US$2 million for the modernization of the mining cadastre? Foreign currency shortages cannot be used as an excuse because over 60 cents per every dollar generated from exports comes from the mining sector. It is therefore imperative that Government ploughs back foreign currency earned from mining into infrastructure development which enhances the performance of the mining sector like the mining cadastre. Legislators can go a step further to check foreign currency expenditures by government especially foreign trip to make a case for poor prioritization.
  • Monitor whether financial statements and annual reports for mining State Owned Enterprises (SOEs) have been submitted within two months after the end of each financial year to the OAG as required by the Public Financial Management Act (Section 49). Parliament must not wait for OAG’s report which must be produced within six months after the end of each financial year to sift information on which SOE has defaulted on timely submission of annual reports for audit.
  • Performance appraisal of Exclusive Prospecting Orders (EPOs) is necessary. Legislators must ask the Minister to submit a register of EPOs, with progress reports evaluated against agreed plans.

Aside from the targets set for legislators, the following action points targeted at CSOs were agreed;

  • Legal advice on implementation of the “use it or lose it” principle under the current Mines and Minerals Act is need.
  • Engage Parliamentarians on social media or through physical meetings to support them as they prepare for Wednesday Parliament sitting, caucas meetings and ask pointed questions on mining governance issues.
  • CSOs must build the capacity of the committee members to scrutinize and hold the Ministry accountable based on quarterly performance reports submitted to Parliament.

A perfect tone was set by Honourable Anele Ndebele immediately after the end of the workshop.  Speaking in Parliament, Hon Anele Ndebele raised questions on transparency and accountability related to EPOs.

 “… I notice the Deputy Minister of Mines is here present. It is a fact that we are all aspiring towards a US12 billion per year annual budget from mining sector. I therefore wish to invite the Minister of Mines to bring to this house an update on mining sector performance.  Secondly, I wish that the Minister on the same day to bring register of all EPOs by area in this country and also make an indication of the companies that are involved in the EPOs. Finally Mr Speaker, the law so demands that at least every six months, we must have a record of how the EPOs are performing ….. we need to track how they are performing

Transparency and challenging path to accountability, lessons from Gwanda community

Giant strides, in the past decade, have been made by Publish What You Pay (PWYP) campaign to improve the extractive sector transparency landscape world over. The results are quite telling. 51 countries are now implementing the Extractive Industries Transparency Initiative (EITI) – a global best practice on promoting open and accountable management of the extractive sector. In addition to EITI, Canada, EU and Norway now have mandatory disclosure rules which compel extractive companies listed in their jurisdictions to disclose payments made to local, regional and national governments per project per country. With all this progress, focus is shifting to how citizens and civil society are making use of disclosed information to improve development, fight inequality and strengthen accountability.

lTo confront this conundrum or challenge, the Zimbabwe Environmental Law Association (ZELA), Gwanda Residents Association (GRA) and Publish What You Pay (PWYP) Canada are currently working on a joint study, assessing the impact of Caledonia’s Extractive Sector Transparency Measures Act (ESTMA) reports in Gwanda district, Matebeleland South province of Zimbabwe. The focus of this article is to share preliminary findings from the field study which was conducted last week in Gwanda, 22 to 26 January.

“I hear I forget, I see I remember, I do I understand” Confucius.

One of the main challenges when collecting and analysing data from communities on development issues is to ensure community ownership and buy in of the whole process. A challenge we tried to mitigate by deliberately working together with community-based organisations to conduct key informant interviews (KIIs), Focus Group Discussions (FGDs) and to assess emerging patterns from the collected data. We worked with Gwanda Residents Association, Gwanda Economic Justice Network Community Trust (GEJNCT), and Gwanda Youth in Mining. With GRA, we went a step further and we are working together on compilation of research. The benefits are mutual. Working with community-based organisations (CBOs) enabled us to have a more nuanced understanding of the local context, to leverage existing relationships to strengthen participation and to overcome the language barrier risks. Working with the CBOs on this study was also a mechanism to do on the job training for research skills. Before we started the data collection, we spent a half day going through the conceptual framework for the research to check for blind spots together with CBOs.

Gwanda not benefiting fairly from mining activities: mixed reactions

To try and loosen up the conversation on assessing the impact of Caledonia Mining Corporation’s ESTMA reports, we sought to find out the general perceptions of residents on their take concerning mining contribution to local development. Generally, most people interviewed were clear that Gwanda is not benefiting from mining activities. There was wide acknowledgement that Gwanda Community Share Ownership Trust (GCSOT) has made noticeable strides to improve health and education services, an achievement made during the first years of its operations. Communities now barely see the contribution of GCSOT on improving local service delivery. The GCSOT administrator concurred with the observations, and further explained “GCSOT has shifted its focus on local social service provision to support income generating projects to address sustainability concerns. We have not abandoned altogether the thrust to improve service delivery.” Whilst most interviewed people in Gwanda rural lamented little benefits from mining activities, they acknowledged GCSOST’s tangible contribution to local service provision – health, education and water infrastructure. A striking observation is that few people interviewed outside Gwanda knew that interventions made by the GCSOT were funded through dividends from the mining companies.

The opposite is true for residents in Gwanda town. They are clear that mining companies, Caledonia’s Blanket mine particularly, finance the operations of GCSOT. Residents of Gwanda town are not happy that they are directly affected by the impacts of mining activities due to their proximity to the town, yet they are excluded from the benefits of the GCSOT which is focused on rural development.

Upon seeing the payments made by Blanket mine to Gwanda Rural District Council (RDC), a woman artisanal and small-scale miner (ASMer) remarked “we ASMers are not encouraged to pay taxes to Gwanda RDC as communities are not seeing any development from what is contributed by large scale miners.” This clearly demonstrates the far-reaching consequences of how a lack of transparency and accountability in the management and utilisation of mineral revenue can impact on domestic resource mobilisation buy in.

Transparency matters according to communities

Virtually all respondents solidly agreed that transparency in the mining sector is crucial. Several respondents were clear that transparency matters to them because the gold being mined is owned by the communities and they want to know the details of how much is gold is extracted, value realised, royalties, taxes and levies paid, what is received by various government institutions and how the mining revenue is spent since it impacts not only this generation but future generations.

“Leaders must be just as transparent as companies.”

Only a few demanded to know the terms and conditions for the mining agreements so that they could check if the deals were well negotiated to deliver on local development and for monitoring purposes as well. There was limited reference though to the Constitution. Only one respondent revealed that access to information is guaranteed under Section 62 of the Constitution, therefore, public access to information on mining is their right. There was no reference to other constitutional provisions like Section 298 (1) on principles of public financial management which calls for transparency and accountability in all public financial matters. Transparency and accountability during negotiation of mining agreements and for performance monitoring purposes is provided under Section 315 (2) (c) of the Constitution.

Another pattern that emerged from the KIIs and FGDs was that transparency is critical to build public trust and confidence among stakeholders – mining companies, government and civil society. Several allegations were raised mainly against Blanket mine which were hinged on transparency issues.

“The gold mined by Blanket Mine is used to develop Canada, we want the gold to be sold in Zimbabwe and proceeds used to develop this country.”

“We heard that some people from Canada visited Gwanda to see the mine which is behind the development of their country.”

“Gold is sold in foreign currency, we want to know if Blanket mine is paying dividends to GCSOT in foreign currency as well as local tax payments to Gwanda RDC.”

“We do not know how much gold is produced, how much is earned, and taxes paid by Blanket Mine.”

“If the Blanket Mine achieves record gold production and with the gold price soaring, does this mean more dividends to the community trust and taxes paid to government?”

Even though they are several large-scale mines operating in Gwanda, largely, the focus of respondents was on Blanket mine, because of its leadership role in gold production and recent media coverage. From the above comments or questions on Blanket mine’s opaque operations, effectively, it can be discerned that transparency is not only about disclosure but making data to be more accessible and easily palatable for communities. This is so because Blanket Mine on its notice boards displays monthly its performance data related to tonnage milled, gold recovered, gold price, earnings, profits and bonuses paid. Further, Caledonia’s ESTMA reports available online reveal various payments made to government institutions on annual basis. The company is also listed at the Toronto Stock Exchange (TSX), therefore, it is compelled to public release its operational and financial performance data which is available online. On paper, you can hardly ask for more from such as mining company, especially in Zimbabwe, a country that is not part of EITI, so the data produced by Blanket mine is gold. The main challenge though is, the company is failing to make use of transparency as a currency to engage with communities, build public trust and confidence. Civil society organisations (CSOs) have been found wanting on making data as widely accessible and easily understood by the communities.

Gwanda ESTMA FDG

Figure 1: Following the focus group discussion, participants discuss how to find ESTMA data online at www.resourceprojects.org

According to Gwanda CSOT administrator, when Blanket mine achieves record gold production, dividends paid to the community trust also spike. However, since GCSOT received an advance dividend payment of USD4 million as seed capital, the dividends are used to offset this loan and interest that has accrued – it was mentioned that the loan will likely take another 12-15 years to pay off.

Transparency alone is not enough, communities want to see clinics, schools and roads

There was special emphasis by communities that transparency is only a first step – what is critical is to see the development impact stemming from taxes paid by mining companies. Even though we are not sure that the companies are paying their fair share of taxes, it is important to see development from the little resources that are being paid.

Respondents had a wider view of transparency beyond mineral revenue. There was also interest in employment data, to see how many locals were employed and push for preferential local labour recruitment. Another area of interest was openness of procurement to enhance the development of community enterprise development, for example, provision of catering services, personal protective equipment, and security services. Additionally, some respondents mentioned they wanted to understand safety procedures that are in place to protect employees, how minerals are process, how waste is disposed, the environmental impacts of the mine’s operations, and the CSR investments that are made (since these may be exempted from paying taxes).

Gwanda Bridge

Figure 2: Bridge that leads from Gwanda to Blanket Mine.

Community members lamented about how the bridge has weathered with heavy use by trucks from mines, and described challenges of flooding. When it floods, respondents described how people cannot get to work, children cannot get to school, and pregnant women and those that are ill cannot reach the hospital.

Devolution can provide answers to the mismatch of impact of mining activities and poor local economic and social development

From majority of the key informant interviews, the demand for devolution, to enable provincial and district structures to have more control, responsibility and power to participate in decision making processes was echoed. A notion which firmed up more when the respondents noted after being shown Caledonia’s ESTMA reports that local government received a meagre share of revenues compared to central government. For example, in 2018, Blanket Mine paid a total of US$5,227,855 to various government institutions out of which the local government, GRDC received a 2.77% share which amounted to US$144 760. This evidence shows that despite having constitutional powers to mobilise revenue through taxes and levies, Section 276 (2) (b), resource rich local governments struggle to get a fair share of mineral tax revenue.

Caledonia ESTMA report 2016

Figure 3: Re-printed from Caledonia Mining Corporation 2018 ESTMA Report (https://www.caledoniamining.com/wp-content/uploads/2019/05/Extractive-Sector-Transparancy-Measures-Act.pdf)

For Ward 22 which host the key gold mines, Blanket and Vumbachikwe, a key informant interview showed a clear demand that revenue sharing arrangements between the host community and the local government are needed. “We want to get an allocation from what the local government receives from mining companies operating in our Ward. That way, the host communities can be guaranteed of getting some benefits from the mining activities in their area.”

ESTMA data must inspire domestic legal reforms to enhance transparency in the mining

Upon seeing the ESTMA data, several respondents were clear that Zimbabwe must have legal reforms which delivers on open and transparent management of the mining sector. They indicated that this should include a requirement for all companies operating in Zimbabwe to disclose information including production, revenues, and the payments made to governments as well as compel local authorities to share how these revenues are used.

What it takes to make data more accessible

“The biggest challenge is that communities do not know this data exists.”

One of the key research questions was how to make Caledonia’s ESTMA data more accessible and easily palatable for women, youths, and men. Responses varied it was suggested that fact sheets, newsletters, newspapers, radio, ward level local information hubs, WhatsApp groups, twitter, Facebook, and meetings should be used to achieve wider distribution of information. There was emphasis that the fact sheets should have figures and explanatory notes in local languages. As for the meetings, the suggestions were that local accountability structures at village and ward levels must be utilised to ensure wider sharing and greater usage of the Caledonia’ ESTMA reports. One councillor lamented that “…the local planning structures are not effective because they lack information which is useful to effectively plan for development which is hinged on mining revenue…”. It was also mentioned that community-based organisations can be a key channel for information.

It was also revealed that due to lower levels of education, women need more attention when it comes to understanding the meaning of various payments made to government institutions by Blanket mine. Traditional beliefs in the area have not prioritised the girl child when it comes to education. The impact of early child marriage was noted but its severity could not be established. Another important factor as to why the transparency drive must be women focused was that because of their care giving role, they are more affected by service delivery challenges compared to men and they further cannot travel as far for meetings given the many responsibilities. Channels to share information are important and should consider how best to reach women in the community. It was emphasized however by a number of respondents that men and women should get the information in the same way so that they can share the information together, and the information source will not be challenged.

It is a struggle to take the next steps to demand accountability based on ESTMA data

Majority of the Community Based Organisations (CBOs) showed knowledge of Caledonia’s ESTMA which was gained through workshops organised by ZELA. Only one CBO, Gwanda Residents Association (GRA) gave an account of how they have tried to use ESTMA data to demand accountability. Using ESTMA data, GRA followed the money paid to Gwanda Rural District Council (GRDC) and to the Rural Electrification Agency (REA). GRDC management confirmed awareness of the reports but councillors lacked awareness of the reports. Further, GRDC was not keen on discussing opportunities and challenges hinged on disclosure of Caledonia’s ESTMA data. After GRA approached REA, the agency asked them where they accessed the data and general lack of awareness on the contributions made by mining companies in Gwanda to RDC. Beyond this engagement, GRA has yet to follow-up to attempt to assert its right to this information, as outlined in the Constitution.

“When information is limited on what you can do, you are limited.”

Artisanal and small-scale miners have their own version of transparency

Apart from revenue transparency, opacity in the allocation of mining claims especially tributes from large scale gold mines like Blanket mining was also topical according to majority of the respondents. A mining tribute is a result of the allocation of a mineral right or a claim to a third party in exchange of a fee, an arrangement the is recognised under the Mines and Minerals Act. There were strong allegations that senior politicians are the main beneficiaries of lucrative tributes from large gold mining companies in Gwanda. ASMers clearly expressed disappointment that as the largest contributors of gold deliveries to government, automatically they contribute significantly to royalties, but the plough back in producing communities is lacking. In Gwanda, infrastructure deficits, poor road and power networks are hampering productivity of ASMers.