The need to develop mining law in Zimbabwe

There are two things Zimbabwe prides itself in: its indigenisation policies and vast natural resources which have contributed to both the economic empowerment and ironically destitution of the ordinary. For example, people have been empowered with ownership of mines and/or mining rights, leading to an increase in artisanal mining activities. The mining sector contributes immensely to the growth of the economy as current reports indicate that it contributes 12% to the country’s gross domestic product with an expectation of generating US$12 billion annually by 2023. However, there is a need to balance such economic growth and sustainable use of natural resources because unregulated (and even regulated) mining will, in the long run, cause damage to the environment affecting present and future generations.

Unfortunately, the government and enforcement agencies seem to be failing to fully realise the constitutional right to a healthy and safe environment as reports indicate a serious threat to people’s right to an environment that is not harmful to anyone. EMA has lamented that artisanal and small-scale miners (AMS) do not care about the environment as they just “degrade” and “uproot”. For example, people living in Mberengwa, Shurugwi, and Zvishavane complain about the open pits that have been left and are now a threat to humans and their livestock. Theresa Mgume from Zvishavane tragically lost her son who fell in a disused mine shaft. Mercury, which most artisanal miners (ASMs) use, causes a plethora of environmental effects, which include water pollution and harm to fish and anyone who eats the fish. Such calamity prompts for urgent need to develop the law regulating AMSs because if this is not addressed, there will be no natural resources for the future generation and maybe the present too.

It is worrisome that people are facing these problems in a country that has a legal framework (although broad) that strives to prevent such mining impacts. The Constitution of Zimbabwe (stipulated by section 73) provides for the right to an environment that is not harmful to their health or well-being and to have the environment protected for the benefit of present and future generations. The provision calls for two things: (a) economic development which simultaneously (b) protects and preserves the environment. These two must be balanced but the balance is difficult because the major reason for the increase of ASMs is poverty.

Zimbabwe’s Constitution also recognises the principle of sustainable development, which the United Nations defines as “development that meets the needs of the present without compromising the ability of future generations to meet their own needs.” The government has a constitutional obligation to promote the sustainable use of natural resources through the enactment of legislation and other measures. To achieve this, several laws have been and must be enacted.

For example, the Mines and Minerals Act CHAPTER 21:05, which is the principal Act regulating mining activities in Zimbabwe, strives to minimise the environmental impacts of mining. It requires an applicant for a special mining lease to submit a development and operation plan of the proposed mine which explains, amongst other things, a report on the anticipated impact of mining operations on the environment and the measures that that applicant will take to assess, prevent or minimize such impact. This report must include proposals on how the applicant will deal with the prevention or treatment of pollution, treatment and disposal of waste, protection of rivers and other sources of water, rehabilitation of land disturbed by mining operations, and monitoring the effect of mining operations on the environment. The report must also detail the liability for damage to the environment. A mining lease application will not be granted if it fails to consider the proper account of environmental factors contained in this Act. This is cemented by the Environmental Management Act (EMA) which considers mining as one of the activities which require an environmental impact assessment (EIA).

The question one ought to ask themselves is why, with laws that advance sustainable development, do we have environmental degradation . The immediate answer to that is these provisions can (although not at all times) be complied with by large-scale miners. For ASMs, the process is expensive and complicated. Most ASMs do not know that there is a law to be complied with because if they did, there would be a lesser impact.

It is an irrefutable fact that ASMs cannot comply with laws that seek to ensure “sustainable management of natural resources and [the] protection of the environment” for a plethora of reasons. They must not be stopped from mining but simultaneously, their activities must not be devoid of regulation specifically tailored for them. Whatever solution that may be adopted, it must be shaped by the ‘just transition’ mantra such that we cannot have a violation of environmental rights at the expense of economic upliftment because the two are important and must coexist. As some miners cite unemployment and poverty as reasons they became ASMs, there must be a balance between economic development and protection of the environment. It is quite fortunate that others want to be registered. The existing legislation is too broad and cumbersome for ASMs.

I suggest that there must be a new Act specifically for ASMs. The Act must, amongst other things, establish a board that represents and (together with the Environmental Management Agency [Agency]) oversees ASMs operations. This board may also need to educate ASMs on compliance laws such that as they provide for their families, they will not destroy their environment. The Act must also provide for a simpler but effective mining license application. This will include the application fees. Expecting these miners to afford current application fees will be expecting impossibilities.

Conclusively, the current laws are leaving us at risk. There is a need to protect the environment which has alleviated some people’s lives. This, we will do for the present and future generations.

About the Author

Tawanda Gonzi is a lawyer and is currently studying for his Master’s in Environmental Law at the University of the Western Cape. He is also a Canon Collins alumnus.