THE ministry of Mines has been forced to go back to the drawing board and revise proposed changes to the country’s mining law after Parliament flagged some legal provisions as unconstitutional.
Zimbabwe is losing millions of dollars in illicit financial flows and smuggling of minerals and experts blame the country’s weak legislation and porous borders for the haemorrhage.
Zimbabwe has for nearly a decade been facing hurdles in the drafting of the Mines Bill, raising concerns over the political will to overhaul the sector’s operating environment.
Last month, the Parliamentary Legal Committee (PLC) issued an adverse report on the Mines and Minerals Amendment Bill, saying the proposed changes to the law are ultra vires the constitution and bestow carte blanche powers on the line minister.
Chief accountant in the Mines ministry Deuteronomy Muchineripi told delegates attending a conference on illicit financial flows organised by the Media Institute of Southern Africa that an ongoing audit on the compliance of mining firms with the country’s laws and the new Bill are expected to promote transparency and accountability of the capital-intensive sector.
“It is true that the Bill received an adverse report from the Parliamentary Legal Committee. As the ministry, we are now working on those issues which were raised by the committee,” Muchineripi said.
Pursuant to its constitutional mandate of providing oversight on the executive arm of government, the PLC met between March and 3 May this year to consider the Mines and Minerals Amendment Bill, a piece of legislation which sought to overhaul the country’s mining environment.
The committee also engaged the minister responsible for the Bill through a letter raising the constitutional violations as observed by the panel. After deliberations, the committee unanimously resolved that an adverse report be issued in respect of the Bill.
The committee also questioned clause 6 (4) (a) (ii) which provides that any person who wishes to mine a strategic mineral shall satisfy the minister that he or she has the capacity to invest a sum equivalent to or at least US$100 million.
“The clause gives the minister the discretion to prescribe lesser or greater sums generally or in relation to a specific declaration of a strategic mineral,” the adverse report reads.
“The benchmark of the one hundred million dollars is on the high side and appears to be a thumb suck figure such that the majority of ordinary citizens will be unable to mine strategic minerals. This will also affect local companies that cannot afford to invest that amount. This clause allows monopolisation of mining by foreign companies who are able to afford the stipulated figure.”
This clause, the report further shows, is in violation of section 56(3) of the constitution which prohibits discrimination on the basis of economic status for one to acquire equal opportunities in mining.
“As a rule, laws should apply generally and not just to particular individuals or classes of people. The clause also defeats the national objectives set out in chapter 2 of the constitution, in particular section 13 which advocates for local communities to benefit from the resourc es in their areas and the empowerment of the Zimbabwean citizens through involving them in national development projects,” the report reads.
“It violates the principles of equity and inclusiveness by setting a figure that excludes other classes of the society on the basis of economic status. In addition, the discretion of the minister to increase or decrease the amount defeats the tenets of the rule of law principles that state that laws must be certain, objective and unambiguous. ”
The report further shows that clauses 8, 9, 10, 11 and 12 are in violation of section 2(h) and section 9 of the constitution which advocate legislation that develops efficiency, competence, accountability, transparency, personal integrity and financial probity in all institutions and agencies of government at every level and in every public institution.
The constitution provides that measures must be taken to expose, combat and eradicate all forms of corruption and abuse of power by those holding public office.