Legal and institutional gaps

The case studies identified a number of legal and institutional challenges and gaps that were hindering social and environmental accountability in the mining sector, particularly in relation to land, biodiversity and the environment.

Lack of enforcement and implementation of laws

Claude Kabemba's picture

Director of the Southern Africa Resource Watch (SARW)

September 18th, 2013

The case studies identified a number of legal and institutional challenges and gaps that were hindering social and environmental accountability in the mining sector, particularly in relation to land, biodiversity and the environment.

Lack of enforcement and implementation of laws

The major factor undermining social and environmental accountability in the extractive sector in all three countries is the limited – or lack of any – enforcement of existing laws and policies. On paper the countries have well-established institutions and progressive laws, but implementation and enforcement is lagging behind allowing pollution, human rights violations and biodiversity loss linked to extractive industries to continue in Botswana, South Africa and Zimbabwe. In South Africa, the pollution of ground water by mining operations (known as acid mine drainage) is a cause for major concern and is a legacy of years of non-compliance with water pollution control laws. In Zimbabwe, the pollution of rivers such as the Save and Odzi by diamond mining companies is also continuing and has been reportedly linked to the deaths of cattle – despite the existence of laws and commitments made by mining companies in their EIA reports to curb and control pollution. In all three countries, there is inadequate compliance with environmental mitigation measures and mine closure laws and standards.

Nowhere is the problem of compliance, implementation and enforcement of laws more problematic than in the realm of EIAs. In some cases, communities are not consulted as prescribed in legislation, while in many other instances, only token public consultation processes are undertaken by mining companies to make it look as if they are complying with the law. However, in reality, they have no intention of listening to local people or implementing concrete steps to curb environmental damage and protect communities. Furthermore, most EIAs appear to be based on the incorrect assumptions by mining companies and their consultants, who believe they have ready-made solutions to potential problems. Another flaw of EIAs is that they are produced by the mining company or developer of the project and this means there is no independent assessment. Meanwhile, effective implementation and monitoring is often restricted by the relevant ministry’s lack of financial and human resources.

In Zimbabwe, social and environmental accountability is also limited by the requirement that anyone who wants to access an EIA report held by the Environmental Management Agency has to pay a fee of US$250 – far too high for most community members or groups. And the EIA reports in Zimbabwe are not even worth the money since most of them lack detailed assessments of the impact of mining processes on the ecology, livelihoods and cultural rights of communities.

Another critical gap that was identified – especially in Botswana – was the absence of constitutional provisions relating to social and environmental rights that could be used to advance social and environmental accountability. Even in Zimbabwe and South Africa, where these rights have been included in their constitutions, their enforcement remains a major challenge. The state and judiciary often treat these rights as progressive rights that can only be implemented when the state has adequate financial resources. This means they are not treated in the same way as civil and political rights.

The studies also found that there are no clear legal provisions in Botswana and Zimbabwe that establish environmental sureties or an Environmental Rehabilitation Fund as part of the mine closure planning process. Such a fund or surety would guarantee that mining companies or the government would have the resources available to rehabilitate the environment after mine closure. In Zimbabwe, there is also a major policy gap since the country does not have a Mining Policy and its Mines and Minerals Act is out-of-date and does not include clear and comprehensive provisions on environmental management and protection. However, the government has been making trying – albeit slowly – to develop a Mining Policy and a new Mines and Minerals Act.

Weak land tenure systems and absence of free, prior and informed consent

The research studies revealed that land laws do not offer adequate protection to rural communities affected by mining operations because they have very weak tenure rights over the land. Most communities only have usage rights over the land that they occupy since the land is owned by the state. In some cases, governments and mining companies forcibly remove communities to make way for mining without providing them with adequate compensation. In many cases, communities that are forced off their land are not consulted. This means many displacement and resettlement programmes are done without free, prior informed consent and some communities find themselves in a worse position after relocation. Current exploration and mining operations in Zimbabwe’s Marange diamond fields have resulted in the forced relocation and resettlement of more than 800 families so far. This was done without adequate consultation and without the consent of the communities, partly because the country does not have clear and specific laws on displacement to make way for mining operations. Meanwhile, in Botswana, the cultural rights and heritage of the San have also been trampled upon.

Institutional challenges

All the research studies concluded that what is needed in the extractive sector are strong institutions that are transparent, participatory, consensus oriented, accountable and responsive, effective and efficient and follow the rule of law. However, in practice, key institutions such as the legislature are often marginalised or barred from playing an oversight role by the executive or blocked by mining companies. Parliaments are sometimes excluded from involvement in the negotiation of mining contracts. For example, the renewal of De Beers’ 25-year leases for its four mines in Botswana was only presented to MPs after negotiations with the government had been finalised. In Zimbabwe, the legislature, through its Committee on Mines and Energy, had to fight hard to be allowed to carry out its oversight function – even going so far as to threaten government officials and mining companies with contempt of parliamentary proceedings after the committee’s efforts to summon key individuals to testify about the problems in the Marange diamond fields were initially resisted and its attempts to visit Marange were denied twice. While the mining companies and government officials eventually complied, the saga demonstrates how little respect they have for the role and powers of the legislature, which is one of the most critical institutions in relation to the promotion of environmental and social accountability in the mining sector.

The case studies also exposed the institutional conflicts and overlaps that sometimes affect the monitoring of mining industries and the implementation of laws. For example, in South Africa collaboration between the Department of Mineral Resources (DMR) and the Department of Environmental Affairs regarding the regulation of environmental impacts is very weak. In some cases, the DMR issues mining rights without the knowledge of the Department of Environmental Affairs. One glaring example was when the DMR issued a mining licence to Coal of Africa (CoAL) near Mapungubwe National Park – a UNESCO World Heritage Site – without compliance with all the related environmental laws, including water-use laws. In many cases, the Department of Water Affairs is often compelled to issue water licences in areas where there is insufficient water for mining because the DMR has already issued mining rights to companies. In addition, there are also instances of overlaps on environmental matters between the provisions in South Africa’s National Environmental Management Act and its Minerals and Petroleum Resources Development Act. Even though the Department of Environmental Affairs is the lead agent on environmental matters, the DMR believes that it has the mandate, and the capacity, to regulate environmental impacts related to mining. These conflicts and overlaps affect environmental and social accountability and can lead to environmental degradation and biodiversity loss through unregulated mining practices.

Some environmental monitoring departments also lack the technical, financial and human resources to monitor the implementation of EIA commitments and other legal requirements. In Botswana, an assessment of the Department of Environmental Affairs’ Environmental Impact Assessment Unit revealed that there is need for capacity building and strengthening. Meanwhile, mining departments are still secretive and in many cases do not readily disclose information to the general public – usually by hiding behind confidentiality clauses.

But institutional problems also affect mining companies. In South Africa and Zimbabwe, some mining companies are constantly looking for legislative loopholes in order to bypass legal and policy requirements and boost their short-term profits. For many mining companies, Corporate Social Responsibility (CSR) is just a public relations exercise and CSR projects are largely cosmetic, especially as most of the CSR standards adopted by mining companies are voluntary – and therefore they are not legally binding.

The case studies also revealed that compliance with social and environmental accountability measures is affected by the size and capitalisation of the mine. Small or informal miners often face financial constraints that hamper their ability to comply with environmental standards, while multinational companies can afford to comply with all legal requirements. As for project financing, even if the World Bank, AfDB and IFC recommend environmental and social standards, the studies found that mining companies from emerging economies, such as China, may not pay any regard to these issues. All they are interested in is the extraction of mineral resources – not community development, human rights or environmental and social rights.

Domestication of international laws and policies

The domestication and application of regional and international instruments by member countries is weak. Regional harmonisation and integration of policies under SADC also fall short of addressing social issues and the plight of rural communities that are affected by mining projects. Indeed, SADC protocols on mining are more concerned with enhancing economic development partnerships rather than seeking a common understanding on legislation and policy implementation for the proper management of natural resources and the environment.

About the author(s)

Claude Kabemba is the Director of the Southern Africa Resource Watch (SARW). In 2006, the Open Society Initiative for Southern Africa (OSISA) asked him to spearhead the formation of SARW. He holds a PhD in International Relations (Political economy) at the University of the Witwatersrand (Thesis: Democratisation and the Political Economy of a Dysfunctional State: The Case of the Democratic Republic of Congo). Before joining SARW, he worked at the Human Sciences Research Council and the Electoral institute of Southern Africa as a Chief Research Manager and Research Manager respectively. He has also worked at the Development Bank of Southern Africa and the Centre for Policy Studies as Policy Analyst. Dr. Kabemba’s main areas of research interest include: Political economy of Sub Saharan Africa with focus on Southern and Central Africa looking specifically on issues of democratization and governance, natural resources governance, election politics, citizen participation, conflicts, media, political parties, civil society and social policies. He has consulted for international organizations such Oxfam, UNHCR, The Norwegian People’s Aid, Electoral Commissions and the African Union. He has undertaken various evaluations related to the work of Electoral Commissions and civil society groups interventions in the electoral process in many African countries. He is regularly approached by both local and international media for comments on political and social issues on the continent. His publication record spans from books (as editor), book chapters, journal articles, monographs, research reports, and newspaper articles.

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