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Introduction

Zimbabwe may have a good policy and legal framework on mineral resource governance but it has been downplayed by a lot of factors which in their sum total amount to “the wrongs” in Zimbabwe mineral resource governance. Mineral resource governance in Zimbabwe is characterized by high environmental costs, lack of respect for human rights, illicit financial flows, lack of transparency and accountability, social costs, improperly regulated small scale mining activities, “the Chinese curse”, corruption, inter alia. In the Zimbabwe I envision, there will be policy consistency, a business and human rights approach to mineral resource governance, issuing of Sustainable Development Licence to Operate, ensuring transparency, accountability and reporting, developing codes of good governance, investing in data, knowledge, research and innovation, increased monitoring and increased steps to regulate effectively the small scale mining sector. This write-up approaches this subject by way of identifying a wrong in the mineral resource governance in Zimbabwe, discussing it and then at the same time identifying a solution and discussing it.

“The Chinese Curse”

It emanates from an understanding that the Chinese‘ approach to mineral resource governance in Africa in general and Zimbabwe in particular does not give a good framework or guideline to a sustainable and good mineral governance.[1] China adopts a “strictly business” approach[2] which in turn pays no attention to how minerals are extracted, processed or sold, impact thereof to the environment and how it potentially impacts the interests and rights of other stakeholders.  It was witnessed in the recent clear show of disregard to mine workers’ rights wherein a Chinese mining company owner shot two  Zimbabwean employees.[3] For the Chinese, as long as there is an exchange of minerals or mining rights in exchange for value, then that is sufficient. This is unlike its Western counterparts who demand good governance and respect for human rights[4] as pre-conditions to mining investments. The Chinese’ “strictly business” approach emanates from the 1955 Asian-African Bandug Conference[5] where China stressed the idea of “mutual non-interference in domestic affairs”.[6] They do not have a framework or policy approach in stakeholder’s interests, corporate social responsibility, human rights or environmental consideration but “strictly business”.

In an ideal Zimbabwe, the best approach to the “Chinese curse” would be two-pronged. Firstly, putting in place a framework (legal or policy) where Chinese investors are required to guarantee principles of respect for human rights, corporate social responsibility and environmental considerations as some of the central principles governing their mining business adventures. This would be followed by close monitoring by both the relevant government department and private sectors.

The second approach calls for a more biased approach towards favouring Western mining companies. It may require Zimbabwe to positively discriminate, violating the most-favoured-nation-treatment principle; which calls for no differentiation in selecting who invests in the Zimbabwean mining industry.[7] However, the Southern African Development Community Finance and Investment Protocol (SADC FIP) which has the force of international law allows nations to be biased on who can invest in their respective countries in pursuit of a national development goal.[8] Therefore Zimbabwe can give Western based mining companies preferential treatment on this basis because the western approach calls for a guarantee of respect for human rights, transparency as pre-conditions to any mining venture in Zimbabwe.[9] This is an approach which stands to benefit Zimbabwe’s mineral resource governance.

The Human Rights Problem

Mining companies, regardless of their country of origin usually pay little or no regard to fundamental human rights from extraction to marketing of minerals. It is a global problem. Cases of child labour in Mica Mines in India[10], blood diamonds in Sierra Leone[11] and Democratic Republic of Congo’s child labour practices in cobalt mines[12] quickly come to mind. This can largely be attributed to the growing, unbridled, corporate power where companies may have net revenues that can exceed a country’s Gross Domestic Product (GDP).[13] The United Nations Development Programme states that, “of all human rights failures today, those in economic and social areas affect by far the larger number and are the most widespread across the world’s nations”.[14] Corporations have considerably contributed to these violations.

Zimbabwe has not been spared from these corporate sponsored human rights violations. Anjin Mining Company, Canadille and Mbada Diamond Companies have been involved in a number of environmental rights violations which range from pollution of “water along Save and Odzi rivers which has led to skin rash and livestock loses”.[15] The former Deputy Minister of Environment stated in the Manica Post in 2007 that the “environment has been ruined…the extent of the plunder is shocking”.[16] This clearly shows no respect of environmental rights as enshrined in the Constitution of Zimbabwe.[17]

Flagrant disregard to human rights has reached serious levels that drastically affect the mineral resource governance regime in Zimbabwe.

The best approach to the human rights dilemma in the mineral resource governance in Zimbabwe is to domesticate the Ruggie Principles.[18] It calls for corporates and businesses in the mineral resources to respect all human rights.[19] It ensures co-ordinated effort between the government and private players in mineral resources governance to ensure protection and respect of human rights. The United Nations Guiding Principles Business and Human Rights also calls for the state to diligently protect its citizens from human rights abuses and the corporate in mineral resources to respect human rights and ensure that victims have access to effective remedies.[20] Countries such as the United Kingdom have already domesticated this UN Framework.[21]

However, to ensure that businesses and companies in mineral resource ventures respect human rights and do not flagrantly disregard human rights, deterrent measures, where necessary, should be enforced. This would require criminal penalties for companies violating rights such as environmental rights. The need for such emanates from the fact that companies can easily pay off in civil suits[22] brought against them because they have the financial power. This approach was adopted by the courts in the South African case of Blue Platinum Ventures (Pty) Ltd and Maponya wherein the court held criminally liable a company for failure to respect environmental rights by degrading the environment.[23] It has also been applied in USA and Australia.[24]

Some of the most menacing problems Zimbabwe faced in mineral resources governance emanate from the artisanal and small-scale mining (ASM) sectors, “makorokoza”. Despite this being a livelihood sector which urgently needs formalisation , these economic players bring along a plethora of challenges such as unacceptable levels of use of mercury in small scale and artisanal mining ventures.[25] Zimbabwe, a signatory to the Minamata Convention on mercury, is struggling to regulate such use of mercury which causes irreversible brain damage and severe effects on the fertility of women among several challenges.[26]

In righting these wrongs, there is need for “context-specific” frameworks: legal and policy frameworks.[27] A report released in 2017 by UN Environment Programme stated that the policy and legal regulatory frameworks which address environmental, safety and health issues in ASM do not adequately meet the needs of miners.[28] Therefore, the first approach requires strong, ‘context specific’ policy and regulatory frameworks addressing all the problems faced by and arising from ASM. These must be “reflected in international, regional, national and local agendas”.[29] It also requires government and private sectors to ensure close monitoring of such policy and legal frameworks.

However, the policy and legal regulatory frameworks should have been inspired by comprehensive consultation of the small scale, artisanal miners themselves. Cristina Villegas, director of Pact’s Mine to Mine (M2M) says that, “you have to involve miners; otherwise, you do things that are stupid for them”.[30] This is so, because, failure to involve them is failure to address their needs; failure to address their needs means the problems will persist.[31]

It is important as well for governments to create the necessary operating environment.[32] A. Stewart who wrote an article on how mining can be bad for health has stated that, “it needs official, national government involvement, business people who understand mining, academics who understand health, academics who understand mining and involvement of the workforce.”[33] This would mean a properly regulated business environment which seeks to promote the works and products of ASMs to corporations.[34] According to Villegas, there could be innovations wherein government or private players can offer healthcare, credit facilities, proper technologies and gender focused instruments in exchange for minerals.[35]

Another solution which can apply across the board particularly to address social impacts of mining activities is introducing Sustainable Development Licences to operate.[36] These are licences which are obtained by mining companies from communal areas where they seek to operate, stakeholders, governments with whom they engage to establish and carry out mining activities.[37] It has been stated that SDLOs address mineral governance issues in a broader sense by covering environmental, social; economic that are covered by Sustainable Development Goals (SDG).[38] Moreover, they set out minimum standards of behaviour expected in the mineral resource sectors and bring both public and private sectors working in the mineral resource sector together towards common SDGs.[39]

Conclusion

There are a lot of problems that continue to negatively affect the mineral resource sector with problems emanating from various facets and causing long lasting impacts. Addressing these matters requires an approach that brings together all relevant stakeholders in designing a policy and regulatory framework that specifically deals with these problems. The role of close monitoring in implementation of policy frameworks cannot be understated.

(courteneymukoyi@gmail.com)

[1] R. Naidoo, Coporate Governance (2003)

[2] R. Naidoo (n1 above)

[3] Nyasha Chingono, ‘Shooting of Zimbabwean workers by Chinese mine owner shows systemic abuse, watchdog says’ CNN, (28 June 2020)

[4] R. Naidoo (n1 above)

[5] R. Naidoo (n1 above)

[6] R. Naidoo (n1 above)

[7] UNCTAD ‘Most-Favoured-Nation Treatment’ (1999) UNCTAD Series on Issues in International Investment Agreements p.1

[8] T. Kondo ‘A Comparison with Analysis of the SADC FIP before and after Its Amendment’ (2017) Vol.20 N.1 Potchefstroom Elektroniese Regsblad (2017)

[9]

[10] Business and Human Rights  Resource Centre, “India: Prominent child labour, unsafe working conditions found in Jharkhand’s mica mines” https://www.business-humanright.org (Accessed 24 June 2020)

[11] UN Department of Public Information, Conflict Diamonds, (21 March 2001).

[12] H. Mutasa, ‘DRC Child Labour: Mining Companies accused of exploitation’ Aljazeera (4 January 2020)

[13] In 2019, Apple Inc’s revenue amounted up to US$ 53.8 billion and Zimbabwe’s GDP totalled to US$ 12.8 billion

[14] Human Development Report 2000, United Nations Development Programme p. 73

[15] United Nations Industrial Development Organization, ‘Follow the Money: Zimbabwe A Rapid Assessment of Gold Supply chainsand Financial Flows Linked to Artisanal and Small-Scale Gold Mining in Zimbabwe, (2018)

[16] United Nations Industrial Development Organization (n15 above)

[17] Constitution of Zimbabwe, Amendment Number 20 of 2013

[18] Business and Human Rights Resource Centre, The Ruggie principles, www.business-humanrights.org (Accessed on 28 June 2020)

[19] Business and Human Rights Resource Centre (n19 above)

[20] Business and Human Rights Resource Centre (n19 above)

[21] Business and Human Rights Resource Centre (n19 above)

[22] K.O Odeku and S. R Gundani, ‘Accentuating criminal sanction for environmental degradation: issues and perspectives’, (2017) Environmental Economics

[23] Odeku and Gundani (n23 above)

[24] Odeku and Gundani (n23 above)

[25] United Nations Industrial Development Organization (n15 above)

[26] United Nations Industrial Development Organization (n15 above)

[27] UN Environment, ‘Mineral resource governance in the 21^st Century (2017)

[28] J. Murray, ‘Can governments find a resolution for issues facing artisanal mining’ ( 8 November 2019)

[29] UN Environment (n30 above)

[30] J Murray (n31 above)

[31] J Murray (n31 above)

[32] UN Environment (n30 above)

[33] J Murray (n31 above)

[34] J Murray (n31 above)

[35] J Murray (n31 above)

[36] UN Environment (n30 above)

[37] UN Environment (n30 above)

[38] UN Environment (n30 above)

[39] UN Environment (n30 above)