THE Parliamentary Legal Committee (PLC) has issued an adverse report on the Mines and Minerals Amendment Bill, saying the proposed changes to the law are ultra vires the constitution and bestows carte blanche powers on the line minister.
BERNARD MPOFU
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.
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, which comprises lawyers and is chaired by veteran lawyer Jonathan Samkange, raised the red flag over some clauses of the Bill, warning that it is not only fraught with constitutional violations but may also fuel corruption.
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 resources 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 offices.
“Clause 8 (3) (a) of the Bill states that a member appointed to the Board shall hold office for an indefinite period. This gives rise to the question of impartiality and fairness and creates a breeding ground for corruption and nepotism,” the report reads.
Clause 12, the report noted, violates section 169 of the constitution by making the Supreme Court a court of first instance instead of the High Court.
The Supreme Court is the final court of appeal in Zimbabwe except in matters over which the Constitutional Court has jurisdiction. The committee also observed that the Bill also disempowered communities displaced to pave way for mining activities.
“Clause 35 (4) is in violation of section 71(2) and (3) of the constitution which provides for property rights and compensation for compulsory deprivation of land, the report reads.
“This clause provides that if a landholder or Rural District Council withholds consent to a person seeking to exercise their rights under any exclusive prospecting licence, exclusive exploration licence or any special grant, he or she may not be a beneficial owner directly or indirectly by obtaining any mining right or title over the ground (surface rights) in respect of which consent was withheld for a period of 10 years.
“This has a negative impact on the rights of landowner, the landholder or Rural District Council concerned should not be penalised for withholding consent. Both the landholder and the miner have the right to apply for mining title. The landowner should be offered first preference if the mineral is occurring on their land.”
This clause, the committee noted, is also in violation of section 194(d) which provides that public administration in all tiers of government — including institutions and agencies of the state and government-controlled entities and other public enterprises — must be governed by the democratic values and principles enshrined in the constitution including the principle that services must be provided impartially, fairly, equitably and without bias.
