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Extractive industries policy and legal handbook - Analysis of the key issues in Zimbabwe's mining sector - Case study of the plight of Marange and Mutoko mining communities
Shamiso Mtisi, Mutuso Dhliwayo and Gilbert Makore, Zimbabwe Environmental Law Association (ZELA)
January 2011

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Introduction

This handbook constitutes one of the battles being fought by civil society organisations to promote and protect the rights of communities living adjacent to mining areas against the operations of extractive industries, the state and other individuals who violate their Environmental, Economic, Social and Cultural Rights (EESCR). Its objective is to assist legislators to further appreciate and build their knowledge on the key issues that they should focus on in carrying out their representative, oversight and legislative role in the extractive sector. The handbook seeks to explain some key concepts in the extractive sector and give policy and legal solutions within the context of recent developments in the sector in Zimbabwe. The main thrust is to promote and protect the EESCR rights of mining communities.

The handbook has a diverse foundational base from which the information was drawn by the authors. Firstly, it is anchored on the results of a research on the impact of extractive industries on the EESCR of communities in Marange and Mutoko where diamond and black granite mining operations are taking place respectively. The research was undertaken by the Zimbabwe Environmental Law Association (ZELA) in 2009. Secondly, the book is based on lessons learnt by the authors in implementing a project initiated by ZELA to build the capacity of legislators to effectively play their representative, legislative and oversight role in the extractive sector. Thirdly, the authors drew a lot of information from formal and informal discussions with government officials, lawyers, industry officials, bankers, community representatives and donor agencies over the past three years. These discussions were invaluable in gaining insight into the subject of community rights, revenue transparency, corporate social responsibility and environmental justice. Some of the thoughts and discussion points there from are included in this book. Fourthly, the handbook drew some lessons as well from the public interest litigation work of ZELA which has seen the organisation assisting communities affected by the operations of mining companies and state actions by taking legal action seeking for redress. Fifthly, the handbook draws a lot of information from extensive literature on the extractive sector.

The research that was undertaken by ZELA in Mutoko and Marange was meant to provide a platform for civil society to better understand the trials and tribulations of the poor women, men and youths in these resource rich areas caused by mining companies and government action. The research also established the level of legislative representation of EESCR of mining communities by the respective members of parliament. Mutoko has the world renowned black granite that is being extracted mainly for export by 11 local and foreign mining companies. In Marange, diamond mining by state owned companies and foreign investors since 2006 has resulted in a lot of human rights violations. In both cases one of the key research questions was whether the local communities are deriving any tangible economic benefits from mining and what has been the impact of mining activities on community livelihoods from an environmental, economic, social and cultural rights perspective. Consequently, in both cases the research identified some of the major impacts of mining on the communities including environmental degradation, loss of land, water pollution, human rights violations and mere plundering of resources without any tangible benefits going to the communities. Instead when mining companies decide at their own volition to give back to the community, it will be donations of a few bags of food, fuel to local politicians or traditional leaders and other items that do not alleviate poverty.

The research was complimented by advocacy work that was aimed at influencing policy decisions in the extractive sector around community participation in mining, revenue generation and distribution, mining taxation, environmental degradation, corporate social responsibility and respect of human rights in mining communities. The target group for the project were legislators in the Mines and Energy Portfolio Committee and the Environment and Natural Resources Committee. The project sought to increase the legislators' knowledge of the impact of mining operations on communities. In essence, it sought to build a platform for engagement between the legislators and the communities. Legislators have a duty to call government and mining companies to account for their impact on the environmental, economic, social and cultural interests of communities living near mining areas. Therefore, within the above context, this handbook is meant to act as a guide to legislators to effectively play their legislative, representative and oversight role over government action and non-action in the extractive sector. It is also meant to demonstrate and expose cases of environmental, economic and social injustice happening in Marange and Mutoko for action by legislators. The hope is that this may then trigger legislative, political and community action to protect and promote the rights of communities living adjacent to other mining areas in Zimbabwe as the problems in Mutoko and Marange are a lens of the problems obtaining in the whole mining sector.

Drawing from the informal and formal discussions with various stakeholders, literature review and the public interest litigation cases, it is important to note that EESCR have continued to be relegated to the periphery in national discourse, implementation and resource allocation as civil and political rights are a preferred area of intervention in Zimbabwe. This is despite the equality and indivisibility of all human rights. The judiciary for example is not ready to defend the environmental, economic, social and cultural rights of communities as evidenced by the decision of the High Court in a case involving the relocation of Chiadzwa villagers that was dismissed by the court on the grounds that it was not an urgent matter. Further, a number of critical issues in the extractive sector were noted such as lack of transparency and accountability by state institutions in awarding mining contracts, corruption by public officials, a poor and ineffective mining tax regime that has failed to generate enough revenue for the state, absence of a corporate social responsibility framework for mining companies to meaningfully plough back to communities, limited opportunities for community engagement in mining and gross violations of human rights by the state and mining companies especially in Chiadzwa diamond fields. These are issues the legislators should tackle as a matter of urgency if the mining sector is to meaningfully result in community development and national economic growth.

In the above context, the publication of this handbook acts as a strategy that can facilitate more responsible government and private sector actions and deliver justice to poor and vulnerable women, men and youths whose rights are being violated in mining areas. In great part, this is also a contribution to the fight against poverty and vulnerability in the country as it may trigger action for improved enforcement and implementation of environmental, economic, social and cultural rights with the help of legislators. The handbook may also be useful in helping to bring government and other actors to account for their actions. One of the problems this publication seeks to address is the fact that poor and vulnerable women, men and the youths in rural and urban areas, either individually or collectively, often lack adequate knowledge and resources to challenge government actions, decisions or laws as well as private sector actions that contravene their constitutional rights or the country's obligations under international law. Further, when it comes to defending themselves against overreaching government, too many citizens are afraid to call the government and the private companies to account for their actions. Hence the legislator can play a key role in that respect.

In terms of structure, the book is divided into 4 Chapters. The first Chapter outlines the conceptual background of economic, environmental, social and cultural rights and the human rights discourse in the context of the extractive sector. The Chapter positions Economic, Environmental, Social and Cultural Rights (EESCR) as human rights. The contribution of the mining sector to economic development is also outlined in the Chapter. Chapter 2 is a statement of the legal and policy framework on mining taxation, corporate social responsibility, community participation, mining contract negotiation and transparency and accountability and how these concepts interlink with the rights and interests of poor and vulnerable communities living adjacent to mining operations.

Chapter 3 profiles the case studies; the impact of mining operations on Marange and Mutoko communities. It states the major problems faced by these communities especially in the face of operations of extractive industries. More importantly, the Chapter identifies some of the environmental, economic, social and cultural problems being faced by people living in these two mining areas. The Chapter is a demonstration of the problems faced by mining communities across the country and in many other African societies. The relevance of these two case studies is that they can demonstrate to the legislators some of the practical aspects related to corruption, human rights abuses, environmental degradation and inequality in wealth generation and distribution in the mining sector.

Lastly, Chapter 4 states the policy and legal options and recommendations as well as next steps for decision makers especially parliamentarians to focus on. Major policy recommendations and options revolve around the reform of mining laws, promotion of transparency and accountability in the extractive sector, equitable revenue management and distribution and community participation in mining.

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