The Mines and Minerals Amendment Bill and the possibilities for small-scale miners in Zimbabwe

Gold mining in Zimbabwe remains one of the leading contributors to the Zimbabwean economy. The contribution small-scale gold mining is making is also on the increase. As from 2014, the amount of gold produced annually by small-scale mining increased from 3,938 kg (2014) to 9,680 kg (2016). These figures show the potential of the sector to bring economic growth.

The increasing importance of small-scale mining in Zimbabwe is furthermore confirmed by the membership figures of the Zimbabwe Miners Federation. Created in 2003 by the Ministry of Mines and Energy, the Federation aims to unite small-scale miners and to provide a platform for addressing the challenges they face.

Estimates show that small-scale mining in Zimbabwe provides a viable livelihood to more than one million people. Considering the slow economic growth the country is currently facing, contributions to the economy by small-scale mining is therefore important. Many small-scale miners, however, still operate without mining licences. This may be because small-scale miners are hardly mentioned in the Mines and Minerals Act of 1975 (“Act”) - the main legal instrument regulating mining in Zimbabwe.

The 1975 Act is outdated in many respects. The Mines and Minerals Amendment Bill of 2015 (“Amendment Bill”), therefore, will change a substantial part of the Act to align it with the 2013 Constitution of the Republic of Zimbabwe. The Amendment Bill, for instance, aims to recognise small-scale miners. By acknowledging small-scale mining, the Zimbabwean legislator is showing its commitment to the founding values of the 2013 Constitution: As small-scale miners, ordinary Zimbabweans can share in the benefits of the nation’s natural resources as provided for in section 2(j) of the Constitution. The question is, however, how effectively the Amendment Bill now regulates small-scale mining.

Whereas the Act did not include a definition of small-scale mining, section 41 of the Amendment Bill defines a small-scale miner as “a holder of a mining location who is not a large-scale miner”. It furthermore defines a large-scale miner as the lessee of a mining lease, or the holder of a mining location whose output in any period of twelve months exceeds or is likely to exceed such amount as may be prescribed. The definition of a small-scale miner is, therefore, still vague. It does not give an indication of the size of land under exploitation or the output from the mine. The definition, however, does indicate what a small-scale miner is not.

The requirements and the procedures for small-scale miners to obtain mining licences also remain onerous and ill-suited for the nature of small-scale mining. Small-scale miners in Zimbabwe generally lack the technical expertise and financial resources required in the first instance, to qualify for mining licences and in the second instance, to mine effectively. The high fees involved in the applying for prospecting and other mining licences excludes small-scale miners from the formal sector. The Amendment Bill does acknowledge this situation. It provides the Minister with a discretion to differentiate between small-scale and large-scale miners regarding certain fees and royalties payable by miners.[1] The Amendment Bill, however, does not give guidelines in terms whereof the Minister should exercise its discretion. The actual impact of the provision is therefore questionable.

Government could consider enabling financial borrowing by small-scale miners from financial services at reasonable interest’s rates. Some efforts have been made by the government in this regard. However, it remains to be seen whether these efforts can transform the sector. Neither the Act nor the Amendment Bill touches on financial assistance for small-scale miners.

Simplifying the requirements and procedures for obtaining mining licences may also provide a mechanism for regulating compliance by small-scale miners with other applicable laws, such as labour and environmental laws. Such regulation can address many of the social and environmental concerns associated with small-scale mining. Since small-scale mining often occurs on alluvial riverbeds, it results in water contamination and environmental degradation.[2] The cumbersome nature of the requirements of the Environmental Management Act (EMA) (2002) results in small-scale miners seldom complying with the required procedures, such as the performance of environmental impact assessments and rehabilitation of mining areas. The Amendment Bill includes standards for land rehabilitation upon completion of riverbed mining, but the wording of the relevant schedule appears to excluding small-scale miners.[3]

Small-scale mining operations in Zimbabwe are also, unfortunately, associated with child labour, unsafe working conditions and a range of other labour standards violations. Economic challenges and the decline in formal employment have caused women and children to enter the traditionally male dominated small-scale gold mining industry. According to reports, children working in the gold panning zones are being victimised, criminalised and stigmatized. Child workers are exposed to harmful chemicals like mercury - a chemical specifically used by small-scale and artisanal miners. Whilst the Amendment Bill has included section 403B to outlaw the use of child labour in mining operations, implementing and enforcing these provisions will remain a challenge in remote areas.[4] Section 403B furthermore empowers the Minister to cancel any mining licence if the holder violates the provisions of the Labour Act, 16 of 1985. This section specifically applies to small-scale miners and is, therefore, an improvement.

The Amendment Bill was gazetted on the 12^th of August 2016, but it must still be presented to Parliament. Given the obstacles faced by small-scale miners, but also the controversy surrounding small-scale mining generally, it is surprising that the legislature did not do more to regulate this sector.[5]  It remains to be seen if the proposed amendments will have any effect for small-scale miners and those suffering the effects of small-scale mining. The legislator has missed an opportunity to regulate small-scale mining adequately.

Written by Godknows Mudimu