Illegal mining revisited: Increasing calls for decriminalisation and regulation in the face of marginalisation

Last year, MLiA published an article introducing the problem of illegal mining (the current status of artisanal mining) in the context of abandoned mines. The practice is characterised by a multitude of dangers to those who brave mineshafts to put food on the table for their families. Stories of death amongst ‘zama zamas’[1] remain a staple of the South African news cycle.

It is thus no surprise that 2017 has been a busy year in terms of matters related to illegal mining. There have been increasing calls for the decriminalisation and regulation of artisanal mining as well as increasing politicisation of the issue. What in particular has been highlighted recently is the lack of legal protection for artisanal miners in the face of continued criminalisation. The lack of legal recourse creates a number of challenges for artisanal miners, from a lack of occupational safety to obstacles in reporting crimes committed against them.

A number of non-profit organisations have lent their voice to the call for the decriminalisation of artisanal mining. This includes Oxfam, who following the death of fourteen miners in Benoni, called for artisanal mining “to be properly regulated and licensed as envisioned by the UN’s African Mining Vision” . Action Aid South Africa has made a similar call, highlighting the negative impact caused by the illegal status of artisanal mining.

The African Mining Vision (AMV) makes a strong case of the decriminalisation and regulation of artisanal mining. Using the example of Tanzania, it is pointed out that the income derived from artisanal mining can have economic benefits for the community at large, through investment in other sectors such as shops and farming.[2] It also has the potential to discourage youth from migrating to urban centres.[3] However, due to the local as well as international neglect of artisanal mining in the African context, the sector has not seen the development (e.g. increased mechanisation) it might otherwise have seen, leading to a situation in which artisanal miners are kept in a “vicious cycle of poverty”.[4]

Professor Robert Thornton of the University of the Witwatersrand has also lent his voice to the call to bring artisanal miners into the formal economy. He contends that they should be regarded as a “national heritage” given the “correlation between current and ancient artisanal mining technologies and social structures”.[5] People are effectively forging livelihoods for themselves through self-employment, and tend to be content at the sites at which artisanal mining occurs.[6] There is often a strong sense of community among those who engage in artisanal mining, with a more even distribution of wealth taking place than occurs in the context of large-scale mining.[7]

It has to be kept in mind is that artisanal miners themselves are already a marginalised group due to poverty and unemployment. This is not to deny that there are serious criminal elements at play in the context of illegal mining. However, the continued criminalisation of the industry would appear to strengthen these elements while leaving those desperate to make a living with little recourse when their fundamental rights are violated. This is particularly clear in the gender context.

The continued criminalisation of artisanal mining creates unique dangers and obstacles to women in the industry. One artisanal miner recounted her experiences in the Kalahari searching diamonds. For her, there were worse things to worry about than being robbed of the few diamonds she was able to find. Her daughter was raped while helping her search for diamonds during the school holidays. She was discouraged from opening a case by other artisanal miners due to the threat police attention posed to the community and the livelihoods of hundreds of artisanal miners. 

The criminalisation of artisanal mining thus further endangers already marginalised people attempting to eke out a living. Legalisation and regulation of their activities would provide these people with the necessary protection they need. For example, as Thornton points out, they would be more likely to use safety equipment in conducting mining operations and would not have to fear their equipment being destroyed by police.

There is ultimately little stopping the burgeoning artisanal mining trade, and in light of the circumstances of those who attempt to make a living through it, there appears to be little justification for the continued criminalisation of the small-scale industry. Decriminalising will provide critical legal protection to a marginalised group that otherwise lack legal recourse in the face of discrimination and violation of their rights.[8] Furthermore, as highlighted by the African Mining Vision, there are economic benefits, to both miners and their communities, from the decriminalisation and regulation of the industry.[9] We should ultimately strive for a situation in which artisanal miners are able to educate and empower their children, so that they need not turn to mining in desperation, as their parents have had to do.[10]