Mining and the Law in Africa: Exploring the social and environmental impacts [1st ed. 2020] 978-3-030-33007-1, 978-3-030-33008-8

Table of contents :
Front Matter ....Pages i-xiii
Introduction to Mining in Africa (Victoria R. Nalule)....Pages 1-17
Regulation of Mining in Africa (Victoria R. Nalule)....Pages 19-50
Social and Environmental Impacts of Mining (Victoria R. Nalule)....Pages 51-81
Concluding Remarks: Key Issues in African Mining and Recommendations (Victoria R. Nalule)....Pages 83-93
Back Matter ....Pages 95-97

Citation preview

Mining and the Law in Africa Exploring the social and environmental impacts

Victoria R. Nalule

Mining and the Law in Africa

Victoria R. Nalule

Mining and the Law in Africa Exploring the social and environmental impacts

Victoria R. Nalule CEPMLP, University of Dundee Dundee, UK

ISBN 978-3-030-33007-1 ISBN 978-3-030-33008-8  (eBook) https://doi.org/10.1007/978-3-030-33008-8 © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2020 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Palgrave Pivot imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

To the African girl child

Acknowledgements

I thank my family especially my Dad Mr. Migadde Robert Blick for his continued support. I am grateful to my close friends for their love and encouragement.

vii

Contents

1 Introduction to Mining in Africa 1 2 Regulation of Mining in Africa 19 3 Social and Environmental Impacts of Mining 51 4 Concluding Remarks: Key Issues in African Mining and Recommendations 83 Index 95

ix

Abbreviations

AFCT African Continental Free Trade Agreement AMV African Mining Vision ARM Alliance for Responsible Mining ASM Artisanal and Small-Scale Mining BIT Bilateral Investment Treaty CDA Community Development Agreement CGT Capital Gain Tax CIT Corporate Income Tax CSMI Centre for Sustainability in Mining and Industry CSR Corporate Social Responsibility DRC Democratic Republic of the Congo ECOWAS Economic Community of West African States EI Extractive Industries EIA Environmental Impact Assessment EIMP Environmental Impact Management Plan EITI Extractive Industries Transparency Initiative ERP Economic Recovery Program GDP Gross Domestic Products HGA Host Government Agreement HSE Health, Safety and Environment ICMC International Cyanide Management Code xi

xii      Abbreviations

ILO International Labour Organization IMF International Monetary Fund IPCC The Intergovernmental Panel on Climate Change IRMA Initiative for Responsible Mining Assurance MIA Multilateral Investment Agreement MMG Minerals and Metal Group NEMA National Environmental Management Authority NUM National Union of Mineworkers OPEC Organization of Petroleum Exporting Countries SDG Sustainable Development Goals

List of Tables

Table 1.1 Table 1.2 Table 1.3 Table 1.4 Table 2.1 Table 2.2 Table 2.3 Table 2.4 Table 2.5 Table 3.1 Table 3.2 Table 3.3 Table 4.1

Mining terminology Uses of metallic minerals Uses of industrial minerals Humans’ uses of minerals Common objectives of Mining Policies in Africa Systems of resource ownership Mineral reserves in Mali Mining licences and leases Steps to be taken in applying for mining licences Employment estimates for ASM Key issues in ASM Rehabilitation legal provisions Local content legal provisions

5 7 8 12 21 27 40 47 48 53 54 80 84

xiii

1 Introduction to Mining in Africa

Abstract  The mining sector is essential in the economic development of many resource rich African countries as it has the potential to finance infrastructural developments which are much needed in Africa. This is due to the fact that various minerals are used as raw materials in different sectors including construction and transport. Most importantly, mineral materials also play an important role in industrialization and urbanization which are now rapidly escalating on the continent. Africa is home to 30% of mineral reserves and these significantly contribute to exports and tax revenues for most countries on the continent. Although the minerals have been exploited for decades in these countries, the benefits have not been so visible, this has necessitated various reforms in the sector including nationalization of mining activities in the distant past; and currently legal and regulatory reforms. This book gives an insight of these developments drawing examples from Eastern, Southern and Western African countries. With reference to fieldwork research undertaken by the author, the questions raised in this book are: Why have the mining laws not been effective in some African countries? What can be done to ensure that African countries fully benefit from their mineral resources? This book is intended to address these questions © The Author(s) 2020 V. R. Nalule, Mining and the Law in Africa, https://doi.org/10.1007/978-3-030-33008-8_1

1

2     V. R. Nalule

by specifically pointing out the social and environmental impacts of the mining sector to the communities. The book also analyses the legal reforms made in the sector and highlights the challenges and prospects of such reforms on both the foreign investors and the African governments. Keywords  Mineral resources in Africa · History of mining in Africa · Introduction to mining in Africa · Utilisation of minerals Characteristics of the mining sector

·

The African continent is endowed with various minerals including gold, diamonds, vermiculite, manganese, cobalt, zirconium, salt, phosphate rock just to mention but a few. Mining basically refers to the extraction of coal and other substances from the earth.1 With this definition in mind, we note that broadly defined, mining includes the extraction of fossil fuels including oil, gas and coal. The discussion in this book however excludes fossil fuels and focuses on solid minerals. The mining sector has increasingly become important due to the rising demand of some minerals such as iron ore which has prompted an increase in foreign investments.2 It is generally an acceptable principle that countries endowed with vast minerals should possess enormous wealth. Albeit this has seemed difficult in most African countries, where mineral-rich countries are among the poorest in the World—this has been described a resource curse.3 Nevertheless, if well-­managed, resource-rich countries can highly benefit from their resources by exchanging and marketing their minerals with the countries which do not have in exchange for valuable currencies.4 The potential of the 1Cambridge English Dictionary, https://dictionary.cambridge.org/us/dictionary/english/mining, last accessed on 1 November 2018. 2Besada, H., and Martin, P., 2015. Mining Codes in Africa: Emergence of a ‘Fourth’ Generation? Cambridge Review of International Affairs, 28(2), pp. 263–282. 3Schubert, J., Engel, U., and Macamo, E. eds., 2018. Extractive Industries and Changing State Dynamics in Africa: Beyond the Resource Curse. Taylor & Francis. 4Cameron, P.D., and Stanley, M.C., 2017. Oil, Gas, and Mining: A Sourcebook for Understanding the Extractive Industries. Washington, DC: The World Bank.

1  Introduction to Mining in Africa     3

mining sector to contribute to the economic and social transformations of the countries is evident in countries that have managed to transition from poverty to at least middle-income status.5 Taking an example of Botswana, it has highly benefited from its mining sector and this has been attributed to the good governance system in the country. Botswana heavily relies on its mining sector which contributes a third of the country’s GDP; 50% of the country’s tax earnings and 80% of the total export. The situation is similar in countries such as Namibia and South Africa.6 However, for other African countries such as the Democratic Republic of Congo (DRC), Malawi, South Sudan—the potential of the mining industry to effectively contribute to the economic development has not been realized due to various issues including lack of advanced technology, lack of infrastructure, political instability, corruption both on the part of the mining companies and government officials. In this respect therefore, the topical issues in the African mining sector include but not limited to infrastructural development; value addition; linkages; corporate social responsibility; local content; environmental protection; land access and small-scale/ artisanal mining. To be able to address the issues highlighted above, we must be aware of the different forms of mining on the African continent. Mining in most African countries is carried out on both large-scale and small-scale/artisanal mining. While large-scale mining involves companies, who employ advanced technology and enormous capital to extract minerals, artisanal mining or small-scale mining (ASM) on the other hand involves the use of rudimentary methods by individuals who are not officially employed by a mining company.7 During my fieldwork 5Panel,

A.P., 2013. Africa Progress Report 2013—Equity in Extractives: Stewarding Africa’s Natural Resources for All. Genève: Africa Progress Panel. http://wwwafricaprogresspanel.org/wpcontent/ uploads/2013/08/2013_APR_Equity_in_Extractives_25062013_ENG_HR.pdf. 6In South Africa however, we note that only a few people have benefited from the mining industry thus majority of people especially Black Africans are marred in poverty. The poverty in the country has led to massive xenophobia attacks in recent years. See, BBC News, https://www. bbc.co.uk/news/world-africa-49432558. 7Hilson, G., Goumandakoye, H., and Diallo, P., 2019. Formalizing Artisanal Mining ‘Spaces’ in Rural Sub-Saharan Africa: The Case of Niger. Land Use Policy, 80, pp. 259–268.

4     V. R. Nalule

research, I had a chance of visiting different mining sites where artisanal miners operate from. It is true that the ASM employs many poor people in rural areas in different parts of Africa.8 These miners use hand tools and as such are directly exposed to health challenges involved in extracting these resources. Although ASM employs over twenty million people in developing countries and formalization and legalization of ASM has been advised as the best way to address the challenges these miners face9: Much still needs to be addressed to effectively ensure that the sector operates in a sustainable manner. There are indeed various issues to be addressed when it comes to ASM, in this book the main question to be addressed is, what practical solutions should African countries employ to ensure that ASM effectively contributes to the economic development of the African countries? Besides addressing issues associated with ASM, there have also been various reforms on the African continent to ensure that the minerals translate into benefits for the host countries and the host communities. One way of achieving this has been to closely supervise foreign companies involved in large-scale mining as evidenced in the strengthening of local content and corporate social responsibility laws and policies. Additionally, there have been reforms aimed at ensuring that African countries benefit from their minerals. Moreover, on a regional level, we recently witnessed the signing of the African Continental Free Trade Agreement on 21 March 2018.10 Indeed, regionalism has been recognized as being essential in addressing the common challenges faced on the African continent.11 In the mining sector, the continent

8See field video by author with interviews from the miners, Victoria Nalule, Formalise and Regulate Artisanal Mining. It can be accessed on YouTube at, https://www.youtube.com/ watch?v=HuWmudeSz_A&t=456s. 9Vogel, C., Musamba, J., and Radley, B., 2018. A Miner’s Canary in Eastern Congo: Formalisation of Artisanal 3T Mining and Precarious Livelihoods in South Kivu. The Extractive Industries and Society, 5(1), pp. 73–80. 10The agreement requires members to remove tariffs from 90% of goods, allowing free access to commodities, goods, and services across the continent. It was brokered by the African Union (AU) and was signed on by 44 of its 55 member states in Kigali, Rwanda on March 21, 2018. 11Nalule, V.R., 2018. Energy Poverty and Access Challenges in Sub-Saharan Africa: The Role of Regionalism. Springer.

1  Introduction to Mining in Africa     5 Table 1.1  Mining terminology Terminology

Meaning

Mine

An excavation made in the earth to extract minerals Mining The activity, occupation and industry concerned with the extraction of minerals Minerals A naturally occurring inorganic element or compound having an orderly internal structure and a characteristic chemical composition, crystal form and physical properties Rock Any naturally formed aggregate of one or more types of mineral particles Ore A mineral deposit that has enough utility and value to be mined at a profit Metallic ores Those ores of the ferrous metals (iron, manganese, molybdenum and tungsten), the base metals (copper, lead, zinc and tin), the precious metals (gold, silver, the platinum group metals) and the radioactive minerals (uranium, thorium and radium) Non-metallic minerals (indus- The nonfuel mineral ores that are not associated trial minerals) with the production of metals. These include phosphate, potash, halite, trona, sand, gravel, limestone, sulfur and many others

witnessed the establishment of the African Mining Vision (AMV) a regional mechanism aimed at ensuring cooperation in the development of the mining sector in Africa. In this book, the main questions to be addressed regarding legal reforms is, whether the reforms are adequate to ensure that African countries benefit from their mineral resources? The book also briefly analyses the application of the local content and corporate social responsibility principles and asks what form these should take to ensure that Africans benefit from their resources. To address the issues raised above, it is imperative to have an overview of the mineral resources present in Africa and the history behind mining on the continent. The next subsection therefore focuses on the history of mining in Africa and the mineral reserves present on the continent. Prior to this discussion, it is worth highlighting the meaning of some key terminologies (Table 1.1).

6     V. R. Nalule

The above terminologies do indeed give the reader a basic understanding of the mining industry especially the specification of minerals and their importance on the economic market. There are however various definitions assigned to ore in this respect, therefore, ore is defined in economic geology to mean metal-bearing rocks and mineral mixtures from which metals or metallic compounds can be extracted by technical means and with economic profit. The definition defers in mineralogy, and as such the term ore usually refers to an ore mineral such as chromite or galena (lead sulfide).12

1.1 Utilization of Minerals: Why Minerals Are Essential? The importance of various minerals including metallic, industrial and construction minerals in today’s economy cannot be underestimated in both developed and developing countries. Industrialization and urbanization are escalating in developing countries such as those in Africa and Asia making minerals essential for the economic growth of these countries. According to the 2018 BP Energy Outlook, the global boom in urbanization is projected to increase, as almost 2 billion people are likely to live in urban centres by 2040 and Africa is projected to contribute one-third of this increase in urbanization: Productivity levels are also expected to increase and it is estimated that 2.5 billion people will be lifted from low incomes.13 All the above developments will necessitate an increase in different minerals on the African continent. Additionally, the developed world is heavily industrialized and as such they heavily rely on minerals in the form of raw materials which are essential primary input for the industry. Taking an example of metallic minerals, we note that these are essential 12See, Tiess, G., 2011. General and International Mineral Policy: Focus: Europe. New York: Springer Wien. 13BP Energy Outlook, 2018. https://www.bp.com/content/dam/bp/en/corporate/pdf/energyeconomics/energy-outlook/bp-energy-outlook-2018.pdf, Energy Outlook, last accessed on 28 August 2019.

1  Introduction to Mining in Africa     7 Table 1.2  Uses of metallic minerals Metal/Mineral

Use

Bauxite

Production of aluminium. Also used in the automobile industry, aircraft manufacture, etc. Production of electrical cables and wires, plumbing, heat-exchangers in fridges, etc. Lead-acid batteries, sheathing cables and roofings, pigments, glass, ammunition and ceramics Steel production, dry batteries, additives in paints, brick colouring, fertilizers, etc. Production of stainless steel, foundry products, plating, rechargeable batteries and catalysts, etc. Precious metal and photography Tinplate for food and beverage containers, alloys and solders Production of galvanizing and die-casting alloys. Electric fuel zinc-air battery, etc. Electrical and electronic uses, production of chlorine and caustic soda and batteries

Copper Lead Manganese Nickel Silver Tin Zinc Mercury

in the automobile industry, aerospace technology and electrical engineering. For instance, more than 40 different minerals are required in the production of a car including among others iron, aluminium, platinum, copper and zinc; gold is used in jewellery production and iron ore in steel production. Table 1.2 briefly outlines the use of various metallic minerals.14 As illustrated in Table 1.2, there are various metallic minerals, and these serve different purposes albeit not all are outlined in Table 1.2. In addition to the metallic minerals, there is also an increase in the demand of rare earths which are primarily used in the communication or environmental technology and are also used in batteries for hybridcars. Erbium for example increases the performance of cables for communication via fibre glass; europium is used as red phosphorus for monitor and television screens.15

14For

a detailed discussion, see Tiess, G., 2011. General and International Mineral Policy: Focus: Europe, p. 40. New York: Springer Wien. 15Tiess, G., 2011. General and International Mineral Policy: Focus: Europe. New York: Springer Wien.

8     V. R. Nalule Table 1.3  Uses of industrial minerals Mineral

Main uses

Barytes

Used in oil industry (drilling mud), chemicals, tiles and glass bricks, etc. Ceramics, glass and paints, plastics and rubber Manufacture of paper, ceramics, refractories, rubber, plastics, paint, cement and glass fibres Production of lime—used in iron and steel production; cement, drinking water treatment, etc. Formed construction products, plasters, mortars, agribusiness Chemical industry, food and feed industry and many other uses Paper, plastics and paints. Also, agribusiness, pharmaceuticals, ceramics, pesticides, etc.

Feldspar Kaolin Industrial limestone Perlite Salt Talc

Besides metallic minerals, industrial minerals also have various purposes ranging from mineral fertilizers (in the case of limestone); cement production (in the case of calcium carbonate minerals and quicklime); glass production (in the case of silica sand); fertilizer (in the case of potash) and many other uses as illustrated in Table1.3.16 Table 1.3 briefly outlines the various uses of industrial minerals. In addition to industrial and metallic minerals, construction raw materials such as aggregates are essential in the global urbanization as they are used in the construction of roads, rails, residential, offices and industrial buildings.

1.1.1 Role of Minerals in the Value-Chain A minerals industry value-chain basically refers to the various stages a minerals project undergoes to produce the final product. Each stage adds value to the product and in economic terms, presents opportunities. For instance, the first stage is usually geoscience and herein research and development opportunities are presented; exploration presents investment opportunities including joint venture partnerships and 16Ibid.

1  Introduction to Mining in Africa     9

transfer of technology; mining and processing equally present employment and investment opportunities. Most minerals are used as raw materials in various sectors of the economy and as such they have a significant role to play at the beginning of a value-chain. The demand for these raw materials has increased in the twenty-first century due to the booming urbanization, industrialization, population growth, information and technological advancement. Nevertheless, minerals also characterized the industrial revolution in the twentieth century; plus, they were used to define the Bronze and Iron Ages. Presently, mineral raw materials are used in automobiles, jet airlines, mobile phones and in agriculture as fertilizers. Basically, mineral raw materials are categorized into energetic and non-energy raw materials. Energetic raw materials include crude oil, natural gas, brown coal and hard coal. Non-energy raw materials include: metallic minerals, industrial minerals and construction minerals. The focus will be on non-energy raw materials and these are briefly described below: • Industrial minerals are solid raw materials which are not used for the extraction of metals and usually monomineralic, such as talc, mica or magnesite. • Construction minerals on the other hand are raw materials in the construction industry which occur as rocks in the geological sense and often are mineral mixtures (e.g. sand and gravel, clay, granite).17 Various sectors of the economy depend on these minerals as raw materials. For instance, the engineering and electrical industry are dependent on metals. The electricity sector is a significant consumer and processor of non-ferrous metals, particularly lead, copper, tin and aluminium.18 The manufacturing sector which is being pursued by various developing countries is also material-intensive and as such, it escalates the demand for minerals. For instance, chemical manufacturing is mineral-intensive

17Ibid. 18Ibid.

10     V. R. Nalule

as it involves the manufacture of chemicals and chemical products such as pesticides, paints, pharmaceuticals, soaps, detergents and explosives; non-metallic products manufacturing involves the manufacture of glass and glass products, ceramics, bricks, tiles, cement and plaster. Other material-intensive industries include the manufacture of base metals and fabricated metal products; manufacture of machinery; manufacture of transport equipment; electrical and optimal manufacture just to mention but a few.19 Additionally, construction minerals such as sand and gravel also play a significant role in the value-added chain in buildings, road and railway constructions. Machinery such as tractors are also dependent on industrial minerals including feldspar, magnestite, potash; office equipment, computers, television are dependent on metallic minerals/ores such as copper, lead, zinc ores. With all these purposes in mind, it is safe to say that the mining sector plays a significant role in the economy of every country.

1.2 Characteristics of the Mining Industry To make the minerals available for production, the mining industry has to fulfil three specific sub-tasks; to locate deposits of raw materials in the earth’s crust; to mine these deposits; to process the content of the deposits to a mining product suitable for marketing. The search for minerals has two stages including prospection (search) and exploration (examination). Extraction on the other hand is the key process of mining and as such most mining companies are extraction companies. The main characteristics of the mining industry include: Mining activities are capital-intensive; Mineral deposits are location-bound and exhaustible. The main unique feature about the mining sector is its dependence on geological surveys to map the exact location of minerals. In this respect therefore, the geological potential for the target mineral is a key factor to consider before investing in prospection, exploration and 19Ibid.

1  Introduction to Mining in Africa     11

exploitation of mineral raw materials. Other relevant factors include: the security of tenure; measure of profitability; legal and regulatory framework; investment protection; taxation regime just to mention but a few.20 Besides the discussed main characteristics of the mining industry, economically, we must acknowledge that the demand and supply of raw materials is a key factor in the mining industry. Basically, the key determinants for the demand of raw materials include the global economic growth; price of raw materials and changes in the industrial structure.21 On the other hand, the supply of raw materials is determined by the mineral reserves available; type of deposit; depth and size of the ore body; political stability of resource-rich countries just to mention but a few. Additionally, technological advancements, access to finances and the necessary infrastructure development are key in determining the development of a mineral deposit.

1.3 History of Mining in Africa Mining just like agriculture, is one of the earliest humankind activities with a rich history on the African continent. Besides Africa being ‘the birthplace of humanity’, it is also the birthplace of mining activity. Basically, the continent has been identified as the oldest and most enduring landmass in the world and it is believed that 97% of what lies beneath the African soil has been in place for more than 300 million years. Indeed, Africa is home to the oldest mine in the world which is a hematite mine at Bomvu Ridge in Swaziland. This mine is believed to be 45,000 years old: Nine thousand years before the Christian era copper metallurgy was developed in Mesopotamia, and around 1500 BC iron was produced in Asia Minor.22

20Ibid. 21Ibid. 22Yachir, F., 1988. Mining in Africa Today: Strategies and Prospects (Vol. 4). United Nations University Press.

12     V. R. Nalule Table 1.4  Humans’ uses of minerals Need or Use

Purpose

Age

Tools and utensils Weapons Ornaments and decoration Currency Structures and devices Energy Machinery Electronics Nuclear fission

Food, shelter Hunting, defence, warfare Jewellery, cosmetics, dye Monetary exchange Shelter, transport Heat, power Industry Computers, communications Power, warfare

Prehistoric Prehistoric Ancient Early Early Medieval Modern Modern Modern

Source Introduction to mining (Introduction to mining, can be accessed at, http://www.cienciaviva.pt/img/upload/Introduction%20to%20mining.pdf)

Historically, mining on the African continent was carried out on a small scale and as such artisanal mining was rampant. The miners basically used hand tools and other rudimentary methods to extract resources. The miners employed crude methods of ground control, ventilation, haulage, hoisting, lighting and rock breakage. For instance, before discovering metal smelting, the miners initially used metals in their native form as they obtained these by washing river gravel in placer deposits. With respect to rock breaking, early miners still relied on native methods and tools made of bone, wood and stone. These methods indeed made the work of the miners hard until the invention of dynamite by Alfred Noble in 1867. Prior to dynamites, miners had discovered another method called fire-setting where the rock was heated first before dousing it with cold water to contract and break it. As society progressed so did the methods of mining as various technology and machinery were introduced, and these are most common in large-scale mining. When discussing the history of mining, it is important to also note that many important cultural eras are associated with and identified by various minerals or their derivatives. These include the Stone Age (prior–4000 B.C.E), the Bronze Age (4000–5000 B.C.E), the Iron Age (1500 B.C.E–1780 C.E), the Steel Age (1780–1945) and the Nuclear Age (1945–the present). The purposes of these minerals also provide an insight into the relevance of the mining sector to the civilization history as illustrated in Table 1.4.

1  Introduction to Mining in Africa     13

1.3.1 Mining Historical Events in Africa Now having given a brief history of mining in the world specifically linking it to the history of civilization, we need to appreciate the same in the African context. The African continent has a long history of mining different minerals including diamonds, copper, gold, uranium, phosphate rock, bauxite and other metals. These minerals have been exploited for centuries using traditional and local methods by the original African inhabitants even before the colonization of African countries by Europeans who later introduced advanced mining methods. Some scholars have explored the history of mining and metallurgy in Africa by studying the various stamps issued over the years by different African countries. Faith Habashi, for instance through his study of stamps reveals that Botswana the former British colony Bechaunaland in Southern Africa issued in 1980, stamps entitled ‘Early Mining’ covering rock breaking, ore grinding, ore transport (on oxen), ore smelting and the tools and products of ancient miners. Gold was also mined by the ancient Egyptians and made into magnificent artefacts. They quarried granite and other semi-precious stones and made huge statues and vessels.23 The historical mining events also reveal that, unlike the popular beliefs, Africans were already civilized before the arrival of Victorian missionaries. For instance, Africans were developed and organized as evidenced by the existence of empires and complex urban societies including golden kingdoms such as the Mali Empire; the Ghana Empire; the Songhai Empire—which had vast wealth gained from the mining of gold and salt from Sahara Africa. Gold was also used by these wealth empires to make masks and other ornaments. These natural resources were traded with those in the Middle East and North Africa in exchange for manufactured goods. Besides gold and salt, iron was also developed in Africa since time immemorial, for instance both red haematite or black iron oxide were used by Africans to make cosmetics or

23Habashi,

F., 2007. History of Mining of Africa: A Philatelic Review. De re metallica (Madrid): revista de la Sociedad Española para la Defensa del Patrimonio Geológico y Minero (9), pp. 11–18.

14     V. R. Nalule

in funeral ceremonies. The African iron metallurgy was so developed to the extent that Livingstone was surprised to find that the Mozambican blacksmiths considered British iron to be of poor quality compared to local iron.24 With the above historical overview, we note that Africans had the ability of developing their mining sectors and innovating improved methods and technology to extract their natural resources, had they not been laid back by the colonial era. Indeed, when discussing about mining in Africa, it is worth exploring the connection between Africa’s mineral wealth and colonialism. The demarcation of the African states was agreed upon at the Berlin Conference of 1884–1885, as a result the continent was split into colonies and ruled by various European countries. Colonization was characterized by not only the stealing of natural resources but also forced labour, heavy taxation and exploitation of tribal and cultural differences by Europeans. The mineral wealth of African states is one of the reasons as to why colonization escalated in the nineteenth and twentieth century. The diamond rush in Southern Africa for instance, was the basis for the prolongation of European rule in Africa. In 1869 an 83.5-carat rough diamond was discovered by a Griqua herdsman in Hopetown in South Africa. The first diamond rush was followed by the second one in 1870 when diamonds were found in the river diggings at Klip Drift (now Barkly West); diamonds were also found at the farm Bultfontein on the edge of modern-day Kimberley and in December diamonds were found in the adjacent Du Toit’s Pan, triggering the third diamond rush. The diamond rush in Southern Africa attracted a host of prospectors, smuggler and speculators who were supported by British Imperialism.25 Indeed, some known mining companies were established during this period. For instance, both the De Beers Mine and Kimberly mines were discovered in 1871. Consequently, the De Beers Consolidated 24Ibid. 25For instance, in the 1870 during the diamond rush, Cecil Rhodes, one of the prominent figures in the mining sector aged 17 arrived in South Africa with nothing but rather selling ice cream to the miners. Later in 1887 after saving some money, he together with Barney Barnato bought shares in the nearby mines.

1  Introduction to Mining in Africa     15

Mines Limited was established on 12 March 1888, and Rhodes was named founding chairman. Besides De Beers other prominent companies including Rio Tinto-Zinc and Consolidated Gold Fields were also established. These mining companies also played a significant role in the escalated colonization of African countries. The companies made huge profits and given their close ties with Britain and European financial centres, gained power and prestige. A case in point is the British South Africa Company (BSA) which played a significant role in the colonization of central Africa. BSA was founded by Cecil Rhodes, its role in colonization is envisaged in its rule over the territories of Zimbabwe and Zambia (then Southern and Northern Rhodesia)—until the mid-1920s when the British administration took over. BSA was also involved in the distribution of mining rights and grant of concessions and as such it granted an exclusive prospecting licence to two mining enterprises owned by British, American and South African interest. Zambia only gained control over its mining sector after its independence in 1964, and in this regard, the concessions rights were transferred to the Zambian government against a ‘compensation’ of 2 million British pounds.26 The above illustrates the role of private companies in not only exploiting the natural resources in Africa but also in the colonization of Africa. These companies were always supported by their imperial states as evidenced further in the Belgian Congo, where the Katanga Mining Company ruled the territory in exchange for an exclusive mining concession granted by the Belgian state which derived its ‘rights’ in the Congo from the Berlin Conference of 1885. Though the search for minerals played a major role in the colonization of various African countries, it is worth noting that other factors including food production and land occupation were also essential in the colonization process.27

26Yachir, F., 1988. Mining in Africa Today: Strategies and Prospects (Vol. 4). United Nations University Press. 27Ibid.

16     V. R. Nalule

Taking stock of the above, we note that the recent developments that have been taking place in the African mining sector have significantly been shaped by the historical events discussed above. For instance, the legal reforms in the sector have all been geared in ensuring that Africans benefit from their mineral wealth. This has necessitated the strengthening of local content provisions; corporate social responsibility; amendment of taxation regimes; regulation and formalization of ASM and establishment of regional mechanisms such as the AMV just to mention but a few.

1.4 Book Outline The book is comprised of four chapters. This chapter introduces the reader to mining and as such it includes a discussion on mining terminologies; role of minerals in the value-chain; characteristics of the mining industry and the history of mining in Africa. Chapter 2 focuses on the regulation of the mining sector in Africa. This chapter starts by giving the evolution of mining laws in Africa. The chapter through a comparative analysis further analyses the legal and regulatory reforms in the African mining sector with specific reference to the current reforms in countries such as Tanzania. The chapter concludes by highlighting the weaknesses in the current mining laws and the recommendations to ensure that the laws are effective. Chapter 3 focuses on the social and environmental impacts of mining activities in Africa. In this chapter, the author draws from her fieldwork experience to analyse the current trends in African mining including discussing the social and environmental challenges of mining activities; and developments in artisanal mining. Chapter 4 gives the concluding remarks, answering the questions raised in this book and also giving recommendations and fieldwork findings. In addition, the chapter highlights some key issues in the mining industry including local content, CSR and land access.

1  Introduction to Mining in Africa     17

References Besada, H., and Martin, P., 2015. Mining Codes in Africa: Emergence of a ‘Fourth’ Generation? Cambridge Review of International Affairs, 28(2), pp. 263–282. Cambridge English Dictionary, https://dictionary.cambridge.org/us/dictionary/english/mining. Last accessed on 1 November 2018. Cameron, P.D., and Stanley, M.C., 2017. Oil, Gas, and Mining: A Sourcebook for Understanding the Extractive Industries. Washington, DC: The World Bank. Gelb, A., and Turner, G., 2007. Confronting the Resource Curse: Lessons of Experience for African Oil Producers. Washington, DC: The World Bank. Habashi, F., 2007. History of Mining of Africa: A Philatelic Review. De re metallica (Madrid): revista de la Sociedad Española para la Defensa del Patrimonio Geológico y Minero (9), pp. 11–18. Hilson, G., Goumandakoye, H., and Diallo, P., 2019. Formalizing Artisanal Mining ‘Spaces’ in Rural Sub-Saharan Africa: The Case of Niger. Land Use Policy, 80, pp. 259–268. Nalule, V.R., 2018. Energy Poverty and Access Challenges in Sub-Saharan Africa: The Role of Regionalism. Springer. Panel, A.P., 2013. Africa Progress Report 2013-Equity in Extractives: Stewarding Africa’s Natural Resources for All. Genève: Africa Progress Panel. http://www.africaprogresspanel.org/wpcontent/uploads/2013/08/2013_ APR_Equity_in_Extractives_25062013_ENG_HR.pdf. Schubert, J., Engel, U., and Macamo, E. eds., 2018. Extractive Industries and Changing State Dynamics in Africa: Beyond the Resource Curse. Taylor & Francis. Tiess, G., 2011. General and International Mineral Policy: Focus: Europe. New York: Springer Wien. Vogel, C., Musamba, J., and Radley, B., 2018. A Miner’s Canary in Eastern Congo: Formalisation of Artisanal 3T Mining and Precarious Livelihoods in South Kivu. The Extractive Industries and Society, 5(1), pp. 73–80. Yachir, F., 1988. Mining in Africa Today: Strategies and Prospects (Vol. 4). United Nations University Press.

2 Regulation of Mining in Africa

Abstract  This chapter focuses on the regulation of the mining sector in Africa. The chapter starts by exploring the various mining policies in Africa. It further discusses the evolution of mining laws with a view of revealing who were the main beneficiaries of these laws; why the laws were never effective to govern the African mining sector and the nationalization that followed. The chapter further analyses the legal and regulatory reforms in the selected African countries specifically looking at mining licences and mining rights. The chapter concludes by highlighting the weaknesses in the current mining laws and recommendations to ensure that the laws are effective. Keywords  Regulation of mining sector · Mining policies · Generation of mining codes · Mining rights · Mining licences and leases · Sovereignty over natural resources · Reforms in the mining sector This chapter focuses on the regulation of the mining sector in Africa. The chapter starts by exploring the various mining policies in Africa. It further discusses the evolution of mining laws with a view of revealing who were the main beneficiaries of these laws; why the laws were © The Author(s) 2020 V. R. Nalule, Mining and the Law in Africa, https://doi.org/10.1007/978-3-030-33008-8_2

19

20     V. R. Nalule

never effective to govern the African mining sector and the nationalization that followed. The chapter further analyses the legal and regulatory reforms in the selected African countries specifically looking at mining licences and mining rights. The chapter concludes by highlighting the weaknesses in the current mining laws and recommendations to ensure that the laws are effective.

2.1 Mining Policies A mining policy is essential in the regulation of the sector as it is a benchmark for all other relevant laws. Generally, a minerals policy highlights the key issues to be considered in the governance of the mining sector. In simple terms, a policy refers to a system of principles agreed to by a group/ organization or government to guide decision-making.1 In this respect, a minerals policy has been defined as the entirety of actions of a State for influencing supply of and demand for mineral resources on its territory and beyond that.2 Different policies serve different purposes. A foreign policy for instance, is essential as it sets the objectives of trade and development through diplomatic dialogue with other countries; a trade policy secures access to minerals through multilateral contracts.3 An economic policy on the other hand, covers issues relating to the government budget, taxation, labour market and it also greatly influences state politics. There is a strong connection between a minerals policy and an economic policy and as such a mineral policy should indeed put into consideration the social, economic, political and environmental objectives of the country. Given the important role of mining policies, these have been adopted in different African countries. For instance, in 2001 Uganda passed its mining policy and this was replaced by the 2018 policy, whose main

1Cambridge Dictionary, can be accessed at, https://dictionary.cambridge.org/dictionary/english/ policy, last visited on 30 July 2019. 2Tiess, G., 2011. General and International Mineral Policy: Focus: Europe. Springer Wien, New York, p. 140. 3Tiess, G., 2011. General and International Mineral Policy: Focus: Europe. Springer Wien, New York.

2  Regulation of Mining in Africa     21 Table 2.1  Common objectives of Mining Policies in Africa To regulate and improve artisanal mining To strengthen local capacity for mineral development To promote private sector participation To develop and strengthen local capacity for mineral development To address child labour in the mining sector To promote gender equality in the mining sector Value addition and revenue generation

goal is, ‘to develop the mining industry through increased investment, value addition, national participation and revenue generation to contribute significantly to socioeconomic transformation and poverty eradication’.4 The policy recognizes the key issues in the mining sector which require extra attention including artisanal and small-scale mining; protection of the environment; addressing child labour and gender equality just to mention but a few.5 Mining policies in African countries often have common objectives as illustrated in Table 2.1. Table 2.1 highlights some of the common objectives of Mining Policies in Africa. However, the list is not exhaustive. Taking the example of the new 2018 Ugandan Mining Policy for instance, it lists various objectives which take into consideration the new challenges in the mining sector which were not anticipated when drafting the previous 2001 Mining Policy. In this respect, the 2018 Mining Policy has several objectives including: • To strengthen the legal and regulatory framework for the development of the mineral sector; • To ensure efficient, equitable, accountable and transparent management of mineral revenues; • To establish, manage and promote the country’s mineral potential; • To enhance and strengthen the institutional capacity for effective governance of the mineral sector; • To organize and legislate artisanal and small-scale mining in Uganda; 4Mining 5Ibid.

and Mineral Policy for Uganda, 2018.

22     V. R. Nalule

• To promote and protect Health, Safety and Environment in the mineral industry; • Provide a framework for gender mainstreaming, equity and human rights and eradication of child labour in the mining industry; • To provide a framework for marketing and value addition of minerals; • To promote local content and national participation in the mineral industry; • To promote regional and international cooperation.6 As highlighted above, Uganda is committed to addressing the current challenges in its mining industry and this therefore necessitates the amendment of the existing mining laws and regulations. Though the country is endowed with massive minerals, there have been constraints in developing and benefiting from these resources due to various challenges including: low revenue from the sector; land conflicts in mining areas; environmental degradation; deprivation of benefits arising from mineral exploitation to host communities; corruption in the issuance of licences, etc. Consequently, the 2018 Mining Policy aims at addressing these challenges. We also note that, the 2018 Policy pays extra attention to the regulation of all minerals including materials that were excluded from the definition of the word ‘mineral’ in the 1995 Ugandan Constitution. For instance, Article 244 of the Constitution states that ‘mineral does not include clay, murram, sand or any stone commonly used for building or similar purposes’.7 The exclusion of sand and other construction materials from the definition of ‘mineral’ contributed to not only the loss of government revenue but also increased illegal sand mining in the country. Moreover, the licensing regime in the mining sector has been characterized by massive corruption due to lack of transparency and accountability all of which costed Ugandans. It is against this background therefore that Ugandan policy makers opted for a new Mining Policy and are also in the process of amending the 2003 Mining Act so that it reflects the objectives stipulated in the 2018 Mining Policy.

6Ibid. 7Article

244 of the 1995 Constitution of Uganda (as amended).

2  Regulation of Mining in Africa     23

Moving forward, we note that some of the Ugandan mining objectives are shared by other African countries as illustrated in Table 2.1. Albeit, objectives may differ for exporting and importing countries. Most developing countries such as those in Africa are exporting countries and as such the key focus for these countries’ mining policies is to contribute to the economic development and consequently alleviate poverty. For instance, the Tanzanian and Ugandan mineral policies make it clear that the mining sector must contribute to the national GDP; increase foreign earnings and increase on the employment opportunities.8 The emphasis on social and economic development follows numerous complaints raised especially from communities adjacent to mineral resources who carry the burden of the negative environmental and social costs and yet get little or no benefits from mining.9 We cannot also ignore the issues relating to land acquisition and resettlement of the affected communities who are in most cases not given fair and timely compensation.10 Whereas the exporting countries are concerned with utilizing the resources for their economic development, for importing industrialized countries however, the focus is to ensure guaranteed supplies of minerals at low prices. Importing countries therefore consider various aspects including foreign trade aspects and domestic economic aspects.11 Importing countries are also more concerned with minerals supply policies whereby they ensure the security of supply of the necessary raw materials with fewer disruptions. On the other hand, exporting countries especially from Africa are more concerned with utilizing the resources to eradicate poverty. With the exemption of Botswana and

8The Tanzanian

Mineral Policy of 2009 replaced that of 1997. P.S., and Márquez-Velázquez, A., 2011. Tanzania’s Mining Sector and Its Implications for the Country’s Development. DAAD Partnership, retrieved 21 January, p. 2018. 10Lugoe, F., 2012. Governance in Mining Areas in Tanzania with Special Reference to Land Issues (No. 41). ESRF Discussion Paper. 11With foreign trade aspects, importing countries guarantee the supply of minerals through international mining investments and participation in foreign mining projects. On the other hand, domestic economic aspects are intended to ensure independence from imports and as such importing countries try to strengthen and improve and coordinate the domestic raw materials producers and consumers. 9Magai,

24     V. R. Nalule

Namibia, most mineral-rich African countries such as Tanzania have not effectively exploited their minerals, and this explains the poverty and lack of developmental infrastructure in areas where these resources are extracted from.12 Taking stock of the discussion above therefore, we note that the interests of importing and exporting countries differ. In this respect, it becomes necessary to have international and regional initiatives aimed at mitigating the conflicting interest and ensure competitive prices for the minerals. The common challenges faced in the mining sector in Africa have influenced the establishment of regional initiatives such as the African Mining Vision (AMV). AMV and regionalism in Africa will briefly be discussed in this book. Moving forward, for a minerals policy to be effective, there is need for the establishment of clear laws and regulations. These laws should not only ensure sustainable exploitation of the resources but also create state mineral rights and a favourable fiscal policy for the investors. Additionally, a minerals policy must stipulate the role of the State and the private sector; institutions responsible for the mining sector and their role and the interrelation of different policies (interactions). The next subsection therefore explores the laws and regulations governing the mining sector in Africa.

2.2 Laws and Regulations Governing the Mining Sector The mining sector is governed by various legislations, the primary being mining laws and regulations. Besides the mining laws, there are other laws that are relevant in the governance of the mining sector and these include environmental laws,13 taxation laws,14 land laws15 and 12Maliganya, W., and Bengesi, K.M., 2018. Policy Enabling Environment of Mining Sector in Tanzania: A Review of Opportunities and Challenges. 13For instance, in Uganda, reference is made to the National Environment Act of 1995 (Cap 15). 14The Income Tax Act, CAP 340 (as amended), Laws of Uganda. 15The Land Act, CAP 227 (as amended), Laws of Uganda.

2  Regulation of Mining in Africa     25

employment laws among others. In this section, the focus will be on mining laws and regulations, specifically discussing the key provisions of these laws including mining rights and the granting of licences and concessions.

2.2.1 National Constitutions and International Instruments 2.2.1.1 Sovereignty of States over Natural Resources: National Constitutions In many African countries, the Constitution is the supreme law of the land and as such the basis for all other laws including those relating to the mining sector.16 In Uganda for instance, the 1995 Constitution (as amended) under Article 244 provides for the exploitation of minerals. The article is to the effect that the exploitation of minerals should be done for the interest of the people; and should consider the interests of the individual landowners, local government and the government.17 We note that the Constitution provides for sovereignty over natural resources and in this respect, the State owns the minerals as a custodian to the people. When discussing ownership over natural resources however, it is important to note the distinction between the natural resources contained in the subsoil and the extracted resources. This distinction is key due to the basic fact that, a natural resource that is not yet extracted is not clearly known in terms of quality and quantity and as such it is considered immovable property, and the financing requirements for both are different. Moving forward, although the State owns the resources on behalf of its citizens, we need to note the power given to the citizens over the government. In Uganda for instance, this is well stipulated under Article 1 of the 1995 Constitution, which states that: 16See

for instance Article 2(1) of the 1995 Constitution of Uganda (as amended). The article provides that the Constitution is the supreme law of Uganda. 17Article 244 of the 1999 Constitution of Uganda (as amended), Laws of Uganda.

26     V. R. Nalule

All power belongs to the people who shall exercise their sovereignty in accordance with this Constitution… all authority in the State emanates from the people of Uganda; and the people shall be governed through their will and consent.18

Article 1 above further makes it clear that the authority of government derives from the Constitution, which in turn derives its authority from the people. Furthermore, Article 2 of the Uganda Constitution provides for the supremacy of the Constitution, in this respect, the article states that, This Constitution is the supreme law of Uganda and shall have binding force on all authorities and persons throughout Uganda. If any other law or any custom is inconsistent with any of the provisions of this Constitution, the Constitution shall prevail, and that other law or custom shall, to the extent of the inconsistency, be void.19

Drawing from the discussion above, we note that the State must ensure that it manages and governs the extractive industry in a way that will benefit the people. This implies that the people have a right to know and access information regarding the mining sector, thus the government must act transparently. Additionally, while exploring minerals by companies, the interests of various stakeholders should be taken into consideration including individual landowners, local governments and the government.20 Nevertheless, there are various systems that apply to ownership of natural resources in different countries including: The State land system; the sovereign system and the accession system. These are briefly described in Table 2.2. Most African countries do follow the sovereign-inspired system where the natural resources are vested in the custody of the State to manage on behalf of its people. This is the case in countries such as Uganda,

18Article

1 of the Constitution of Uganda, 1995 (as amended). 2 of the Constitution of Uganda, 1995 (as amended). 20This principle is well stipulated in Article 244 of the Constitution of Uganda, 1995 (as amended). 19Article

The sovereign system The State allocates the mining rights to companies of its choice following the relevant laws and regulations

Standard sovereign system (i.e. resources considered ownerless property though the State establishes rules for managing them); and sovereign-inspired system (i.e. ownership of the resources is vested in the State)

State land system

Agreements between the State and company are the basis for the exploitation of the mines

The people do not own the natural resources contained in the subsoil

Table 2.2  Systems of resource ownership The accession system

The landowner owns the resources contained in the subsoil. Private law-contracts necessary to grant the companies the right to exploit the resources

This mostly applies to private land such as that in the United States. It follows the principle that what is on the surface and what is below belongs to the landowner

2  Regulation of Mining in Africa     27

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Lesotho and Ethiopia.21 Other countries such as Nigeria, Burkina Faso, Sudan, Tanzania have the State land system, wherein the state or local government owns the resources.22

2.2.1.2 Sovereignty of States over Natural Resources: International Instruments The colonization of Africa made it possible for foreign countries through international mining companies to have full control over the African natural resources including minerals. Consequently, minerals were exploited at the detriment of the African people and this partly explains why many resource-rich African countries are still the poorest with many people living on less than one dollar per day. With the various liberation movements and the decolonization of African countries, many states wanted to have full control over their natural resources and as such most resorted to nationalization—which was a marked feature of the twentieth century. The right of peoples to self-determination and their right to a means of subsistence are some of the justifications for permanent sovereignty over natural resources. Overwhelmed by these growing movements in various developing countries, the United Nations had to recognize the principle of permanent sovereignty of states over their natural resources. Besides being recognized by various regional and domestic laws, the principle of permanent sovereignty over natural resources is also recognized as a principle of international customary law. Historically, we note that this principle has been recognized as far back as the 1950s. At the eighth session of the Commission on Human Rights which took place in 1952, Chile presented a draft resolution asserting the principle of permanent sovereignty of states over their natural resources. Consequently, this right is internationally recognized 21In Ethiopia, this is stipulated under Article 5 (1) of Proclamation no. 678/2010 Promoting Sustainable Development of Mineral Resources. In Lesotho, this is stipulated in Section 3 of the Mines and Minerals Act, 2005. 22In Nigeria, this stipulated under Section 1 (1) of the Mines and Minerals Act, 2007. In Tanzania, this is provided for under Section 5 of the Mining Act, 2010.

2  Regulation of Mining in Africa     29

under the United Nations Resolutions 523 (VI) of 12 January 1952 and Resolution 626 (VII) dated 21 December 1952. In addition to recognizing the right to permanent sovereignty over natural resources, the General Assembly under Resolution 523 (VI) recommends that Members of the United Nations, within the framework of their general economic policy should consider the possibility of facilitating through commercial agreements; • The movement of machinery equipment and industrial raw materials needed by the underdeveloped countries for their economic development and for the improvement of their standards of living. • The development of natural resources which can be utilized for the domestic needs of the underdeveloped countries and also for the needs of international trade. The Resolution however is quick to state that such commercial agreements should not contain economic or political conditions violating the sovereign rights of the underdeveloped countries, including the right to determine their own plans for economic development.23 Despite the provisions of this Resolution, the opposite has been happening on the African continent. Foreign mining companies have for decades exploited natural resources at the detriment of the African people; foreign countries have also actively violated sovereign rights of some mineral-rich African countries by getting influenced in their political affairs especially through funding the various wars on the continent. It is no coincidence that civil wars are only common in resource-rich countries, yet exploitation of minerals and oil never come to a stand-still during these wars. This situation therefore highlights the incompetence and hypocrisy of some of these international instruments. Moving forward, Resolution 626 (VII) which was passed during the seventh session also refers to the State sovereignty over natural resources. 23General Assembly Resolution 523 (VI) of 12 January 1952—Integrated economic development as—Integrated economic development and agreements commercial agreements. This was passed during the Sixth Session.

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It is entitled, ‘Right to exploit freely natural wealth and resources’.24 It is to the effect that: The General Assembly should bear in mind the need for encouraging the under-developed countries in the proper use and exploitation of their natural wealth and resources. The Resolution also recognizes that universal peace cannot be achieved if the under-developed countries are not economically strengthened. The Resolution recognises the fact that the right of peoples freely to use and exploit their natural wealth and resources is inherent in their sovereignty and is in accordance with the purposes and principles of the Charter of the United Nations. Accordingly, the General Assembly recommended that, 1) Member states in the exercise of their right freely to use and exploit their natural wealth and resources wherever deemed desirable by them for their own progress and economic development, to have due regard, consistently with their sovereignty, to the need for maintaining the flow of capital in conditions of security, mutual confidence and economic co-operation among nations. 2) Further recommends all Member States to refrain from acts, direct or indirect, designed to impede the exercise of the sovereignty of any State over its natural resources.25

After six years following the passing of the aforementioned resolutions, the United Nations on 12 December 1958 created a Commission on Permanent Sovereignty over Natural Resources. This was established pursuant to the General Assembly Resolution 1314 (XIII). The Commission was instructed to conduct a full survey of the status of

24UN General Assembly, Right to Exploit Freely Natural Wealth and Resources, 21 December 1952, A/RES/626, can be accessed at 27 August 2019, https://www.refworld.org/ docid/3b00f0853e.html. 25General Assembly Resolution 626 (VII) of 21 December 1952—Right to Exploit Freely Natural Wealth and Resources. This was passed during the Seventh Session.

2  Regulation of Mining in Africa     31

permanent sovereignty over natural wealth and resources as a basic constituent of the right to self-determination.26 Additionally, in 1962, the General Assembly passed another resolution focused on the protection of the state’s right to permanent sovereignty over natural resources. This is Resolution 1803 (XVII) and it emphasizes among others that: 1. The right of peoples and nations to permanent sovereignty over their natural wealth and resources must be exercised in the interest of their national development and of the well-being of the people of the State concerned. 2. The exploration, development and disposition of such resources, as well as the import of the foreign capital required for these purposes, should be in conformity with the rules and conditions which the peoples and nations freely consider to be necessary or desirable with regard to the authorisation, restriction or prohibition of such activities. 3. Nationalization, expropriation or requisitioning shall be based on ground or reason of public utility security or the national interest which are recognized as overriding purely individual or private interests, both domestic and foreign. In such cases, the owner shall be paid appropriate compensation in accordance with the rules in force in the State taking such measures in the exercise of its sovereignty and in accordance with international law.27 Other relevant international instruments affirming the principle of State sovereignty over their natural resources include: the International Covenant on Economic, Social and Cultural Rights, which was adopted in 1966 by the General Assembly Resolution 2200 A (XXI)28; OPEC

26Resolution

1314 (XIII) of the Commission on Permanent Sovereignty over Natural Resources of 12 December 1958. 27General Assembly Resolution 1803 (XVII) of 14 December 1962—Permanent Sovereignty over Natural Resources. 28Resolution 2200 A (XXI) of 16 December 1966—International Covenant on Economic, Social and Cultural Rights.

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also recognized this right under its 1968 Resolution29; the same right was recognized in 1972 under Principle 10 by the Stockholm Declaration.30 This follows the United Nations Conference on the Environment, and the Rio Declaration on the Environment and Development—specifically Principle 2 which is to the effect that states have the sovereign right to exploit their own resources pursuant to their own environmental and developmental policies. In 1974, the principle of sovereignty over natural resources was once more asserted within the framework of the United Nations through the Charter of Economic Rights and Duties of States of 12 December 1974.31 Article 13 of the 1974 Vienna Convention on Succession of States in respect of Treaties also emphasizes the State’s sovereignty over natural resources. The same right is asserted under Article 21, Paragraph 1 of the African Charter on Human and Peoples Rights of 1981. There is indeed case law which interprets Article 21 as stipulated in the case of Social and Economic Rights Action Centre (SERAC) and the Centre for Economic and Social Rights (CSR) v Nigeria, a case which was decided by the African Commission on Human and Peoples Rights.32 Despite all the aforementioned international instruments, which emphasize the sovereignty over natural resources and the need for the developing world to exploit the resources for their economic development—not many African resource-rich countries have economically benefited from their resources. The lack of practical enforcement of some of these resolutions is also worrying. For decades, the international community has paid a blind eye on the injustices and the detrimental mining laws that African countries were forced to enact in the disguise of attracting investments in their mining sectors. The unfavourable mining laws coupled with ridiculous tax incentives offered

29OPEC Resolution XVI.90 of 24 June 1968—Declaratory Statement of Petroleum Policy in Member Countries. 30Stockholm Declaration of 1972. 31General Assembly Resolution 3281 (XXIX) of 12 December 1974—Charter of Economic Rights and Duties of States. 32Communication no. 155-96 of 13 October 2001: Social and Economic Rights Action Centre (SERAC) and Centre for Economic and Social Rights (CESR) v Nigeria.

2  Regulation of Mining in Africa     33

to foreign mining companies in the past, indirectly infringed on these states’ right to sovereignty over their natural resources as the mining sector mostly benefited foreigners and not the local people. This therefore explains why most resource-rich African countries are very poor. Indeed, besides the unfavourable laws, there are other factors that have contributed to the poor performance of the mining sector in Africa and these include among others, corruption; lack of transparency and accountability; lack of the necessary infrastructure such as refineries just to mention but a few. In this respect, the next subsection discusses the mining laws in Africa with reference to the different generations of mining codes.

2.2.2 Mining Laws and Regulations Legislation of the mining sector in Africa has been going through a transformative process and different mining codes have characterized a particular stage in this process. These codes are divided into different generations including the first generation which entails mining legislation of the 1980s; the second generation which entails mining legislations of the early and mid-1990s and the third generation which basically refers to mining legislations of the late 1990s. The new wave of reforms in the current mining laws can arguably be referred to as the fourth generation of mining codes.

2.2.2.1 First Generation of Mining Codes The first generation of mining laws is characterized by the withdrawal of the State from actively being involved in the mining sector as a way of attracting investors. Ghana is a good example of this generation of laws. Generally, liberalization of the mining sector took off in the 1980s and this resulted in the reduction of the State’s role in mining activities. Although it was against the interest of states, international monetary organizations such as the World Bank, encouraged African countries to completely withdraw from the sector as a prerequisite for attracting the much-needed investments. In this respect, with the influence of

34     V. R. Nalule

organizations such as the World Bank, developing countries formulated laws which had the effect of reducing state involvement, privatization, increasing incentives given to foreign investors, lowering of tax rates and royalties just to mention but a few. All these changes meant that the State’s role was merely to facilitate and ensure that private investors had a conducive environment to carry out their activities in such countries. This also meant a relaxation on employment and labour laws thus making it easy for international companies to hire foreigners and it meant relaxation on procurement requirements in the country. There are various countries whose previous mining laws fall under the first generation of mining codes, but the focus in this chapter will be on Ghana.

The Case of Ghana Ghana was the first SSA country to gain independence in 1957. The country is the second-fastest growing economy after Ethiopia.33 Ghana’s economy escalated to 8% in 2017 mostly driven by the mining and oil sectors. In 2018, Ghana’s economy continued to expand rapidly, as such the quarterly GDP growth was estimated at 5.4% in the first quarter of 2018; and 5.4% in the second quarter.34 Although mining is one of the greatest contributors to Ghana’s economy, we note that in the distant past the country hardly benefited from the sector due to the unfavourable mining laws. The country is very rich in mineral resources including gold, manganese, bauxite, industrial diamonds, timber, rubber, silver, salt, limestone just to mention but a few. Gold and bauxite alone account for 64.4% of Ghana's primary exports. Gold is one of the important minerals as it contributes to more than 90% of the total value of mineral wealth; this explains why the country was in the past called the Gold Coast. Ghana’s gold production as of December 2018, was reported at 130 million

33World Bank, Ghana Overview, can be accessed at, https://www.worldbank.org/en/country/ ghana/overview, last visited on 6 August 2019. 34World Bank, Ghana Overview, can be accessed at, https://www.worldbank.org/en/country/ ghana/overview, last visited on 6 August 2019.

2  Regulation of Mining in Africa     35

kg, an increase from the 128 million kg reported in December 2017.35 Additionally, the country’s reserves averaged 8.73 tonnes from 2000 until 2019.36 The gold reserves remained unchanged at 8.70 tonnes in the second quarter of 2019 from 8.70 tonnes in the first quarter of 2019.37 With respect to mineral exports, the gold sector contributed about 96% of the total value of mineral exports in 2015, with manganese (1.95%), bauxite (1.24%) and diamonds (0.31%).38 Additionally, according to the Ghana Extractives Industries Transparency Initiative (GHEITI), the mining sector contributed GH¢1285 million to government revenue in 2015 as against GH¢1193 million in the year 2014. This represented an increase of 7.79% over the previous year’s figure.39 Of the total earnings from mineral exports in 2015 (US$3322.61), gold accounted for US$3212.59 million (96.68%), bauxite exports were US$41.06 million (1.24%),40 while diamonds contributed US$4.22 million (0.31%) and manganese41 brought in US$64.74 million (1.95%).42 Drawing from the discussion above, we note that the mining sector greatly contributes to the Ghana’s economy. However, this has not always been the case, as the country for decades hardly benefited from the sector due to the unfavourable legal regime. Currently, the main laws governing the mining sector in Ghana include: The Mining and 35CEIC,

Ghana Gold Production, can be accessed at, https://www.ceicdata.com/en/indicator/ ghana/gold-production, last visited on 6 August 2019. 36Gold reserves are country’s gold assets held or controlled by the central bank. 37Trading Economics: Ghana Gold Reserves, can be accessed at, https://tradingeconomics.com/ ghana/gold-reserves, last visited on 6 August 2019. 38GHEITI, GHEITI Mining Sector Report for 2015 (2018), can be accessed at, https://eiti.org/ sites/default/files/documents/2015_gheiti_mining_report.pdf. 39GHEITI, GHEITI Mining Sector Report for 2015 (2018), can be accessed at, https://eiti.org/ sites/default/files/documents/2015_gheiti_mining_report.pdf. 40Bauxite has been mined in Ghana since the 1940s. Currently, Chinese corporations are the most prominent in the industry through Bonsai Minerals Group’s ownership of Ghana Bauxite Company. Ghana has large deposits of good quality bauxite in the western, eastern and Ashanti region. 41Most manganese mining takes place in the vicinity of Takoradi, from where the mineral is exported. 42GHEITI, GHEITI Mining Sector Report for 2015 (2018), can be accessed at, https://eiti.org/ sites/default/files/documents/2015_gheiti_mining_report.pdf.

36     V. R. Nalule

Minerals Act, 2006 (Act 703); Minerals Commission Act, 1993 (Act 450); The 1992 Constitution of Ghana; Environmental Assessment Regulations law LI1652; Mining Regulations including those for Health and Safety; Explosives and crops compensations. All these laws are essential in the governance of the mining sector. For instance, the Minerals Commission Act, 1994 (Act 450) establishes the Minerals Commission as a corporate body to regulate and manage the utilization of minerals and coordination of policies related to them.43 The above notwithstanding, we note that in the distant past, before Ghana amended its mining laws, the country had no control over the mining sector. Although the mining sector was considered as key in Ghana’s economic recovery under the Economic Recovery Program (ERP) which was initiated in 1983, the country did not fully benefit from its mineral wealth due to the unfavourable mining laws at the time. The mining legislations in Ghana in the 1980s present a perfect example of the first generation of mining codes. These mining laws included: the 1986 Minerals and Mining Law (PNDCL 153), with two addenda including the Additional Profile Tax Law (PNDCL 122) and Minerals (Royalties) Regulations (LI 1349) in 1985 and 1987, respectively. Due to the importance of small-scale and artisanal mining in Ghana, the law on Small Scale Mining Law (PNDCL 218) was enacted in 1989. Although these laws were investor-friendly, they nevertheless made it impossible for Ghanaians to benefit from their mineral resources and this is due to the ridiculous tax incentives given to foreign investors. Spear-headed by the World Bank, there were various reforms which were made in Ghana aimed at attracting investments. For instance, in 1975 corporate income tax stood at 50–55% but this was reduced to 45% in 1986 and further scaled down to 35% in 1994. Several other

43Some of the mining companies operating in Ghana include: Abore Mining Company Ltd.; African Gemo Resources Ltd.; African Gold Group Inc.; Akoko Gold Ventures; Akoto Stone Quarry Co. Ltd.; Akroma Gold Company Ltd.; All Stars Associates Ltd.; AngloGold Ashanti Ltd.; Barnex (Prestea) Ltd.; Birim Goldfield Inc.; Cardero Ghana Ltd.; Golden Star Wassa Ltd.; Gyampo Mining Co. Ltd.; Haber Mining Ghana Ltd.; Leo Shield Exploration Ghana Ltd.; Newmont Ghana Gold Ltd.; Nkroful Mining Ltd.; Pioneer Gold Fields Ltd.; Resolute Mining Ltd.; Satellite Gold Fields Ltd.; African Mining Services (Ghana) Pty Ltd.; Barnex (Prestea) Ltd.; African Stellar (West Africa) Ltd.

2  Regulation of Mining in Africa     37

changes were made, and these had the effect of reducing the government revenue from the mining sector, for instance in 1975 the royalty rate of the total mineral value stood at 6% but this was reduced to 3% in 1987.44 Moreover, the Foreign Exchange Tax, import duty and mineral duty were abolished. Additionally, there was also an increase in the initial capital allowance for investors to recoup their capital expenditure from 20% in the first year of production and 15% for subsequent annual allowances in 1975, to 75% in the first year of operation and 50% for subsequent annual allowances in 1986. These incentives increased the investors’ profits but at the same time significantly reduced the government revenue from mining. Nevertheless, investments increased during that period, for instance, it is estimated that the mining sector attracted over $6 billion of private investment capital between the period 1983–1998. Additionally, the mining sector’s contribution to national export earnings increased from less than 20% in the mid-1980s to 40% of total merchandise exports earnings since 1992.45 The above notwithstanding, the tangible results from the mining sector were not felt by the local people in Ghana since most of the profits went to the foreign investors. Besides reducing government revenue, the reforms also minimized the role of the State in the mining sector and this was due to privatization that followed in the 1990s. For instance, with respect to Ashanti Goldfields Corporation, the government had 55% shares in 1993 but these reduced to 19% in 1998. The government also further involved private companies by giving them the option of buying viable mines after the end of a management contract. This was the case for Goldfields South Africa which purchased the Tarkwa Mine in 1995 after running it on a management contract from 1993 to 1994. Johannesburg Consolidated Investment (JCI), also purchased the Prestea Mine in 1997 after running it on a contract from 1995 to

44Thomas

Akabzaa: Mining Legislation and Net Returns from Mining in Ghana. In Campbell, B.K. ed., 2004. Regulating Mining in Africa: For Whose Benefit? (Vol. 26). Nordic Africa Institute. 45Thomas Akabzaa: Mining Legislation and Net Returns from Mining in Ghana. In Campbell, B.K. ed., 2004. Regulating Mining in Africa: For Whose Benefit? (Vol. 26). Nordic Africa Institute, p. 25. Quoting Aryee, B.N.A., 2001. Ghana’s Mining Sector: Its Constitution to the National Economy. Resources Policy, 27, pp. 61–75.

38     V. R. Nalule

1996. Other mines were sold outright including Dunkwa Goldfields and Ghana National Manganese Corporation.46 Taking stock of the above, we note that the mining laws of the 1980s were not favouring the people of Ghana, this therefore necessitated the amendment of these laws (as highlighted previously). Consequently, the country has undergone various reforms in the sector and new laws have been introduced. In terms of taxation, unlike the 1980s, at the present, holders of large-scale mining licences are subject to corporate tax (35%), capital gains tax (15%), withholding tax for foreign residents (15%) and royalties (5%).47 In an effort to ensure good governance, transparency and accountability, Ghana joined the Extractive Industries Transparency Initiative (EITI) in 2007.

2.2.2.2 Second Generation of Mining Codes The second generation is characterized by the regulation of the mining sector including putting into consideration environmental and health protection, which contrary to the present practice were left to be a responsibility of the private sector, i.e. non-state actors. Guinea provides a good example of these second-generation mining legislations. The need to ensure the enforcement of social and environmental rules by multinational companies was the cornerstone of the second generation of mining codes which were enacted in the early 1990s. Albeit, due to the limited powers and influence of the State in mining activities, they could hardly enforce such rules against multinational companies.

2.2.2.3 Third Generation of Mining Codes The late 1990s witnessed the emergence of the third generation of mining codes. Unlike the first generation, the third generation 46Campbell, B.K. ed., 2004. Regulating Mining in Africa: For Whose Benefit? (Vol. 26). Nordic Africa Institute, p. 13. 47Ghana Extractive Industries Transparency Initiative (GHEITI), can be accessed at, https://eiti. org/ghana, last updated on 23 August 2019.

2  Regulation of Mining in Africa     39

recognizes and encourages the role of the State in the facilitation and regulation of the mining sector. Albeit, the reforms made had the effect of reducing the State’s role and ownership in the mining sector. Mali, Madagascar and Tanzania provide a good example of the third-generation laws. In Mali for instance, the 1999 Mining Code emphasized the need to attract foreign investors in the country and as such many incentives were provided by the government to foreign mining corporations. The same objective was shared by the 1999 Madagascar Mining Code which aimed to reduce state engagement in the mining operations and increase foreign investments in the mining sector. The disarrangement of states and governments in the mining operations created a gap where social and environmental aspects were not being catered for. In response to this, several initiatives were created to address some of these issues. In this respect, the Global Mining Initiative was launched in 1998 and this was led by a consortium of mining company leaders.48

The Case of Mali Mali is known for its mineral resources especially gold, as it is the 16th largest gold producer in the world and the 3rd on the African continent after South Africa and Ghana. With a gross domestic product (GDP) per capita of around USD763 in 2017, Mali remains a poor country. The gold industry has not only been associated with economic development but also job creation in Mali. For instance, it is estimated that over 2000 jobs were created by the gold industry in 1998. With new discoveries by mining companies, industrial gold production rose by 23% in 2018.49 The gold wealth of Mali can also historically be traced in the early 1300s: History reveals that Emperor Kankou Moussa during his pilgrimage to Mecca in 1325 distributed too much gold along 48Campbell, B.K. ed., 2004. Regulating Mining in Africa: For Whose Benefit? (Vol. 26). Nordic Africa Institute. 49EITI, Mali, https://eiti.org/mali, last updated on 16 August 2019.

40     V. R. Nalule Table 2.3  Mineral reserves in Mali Commodity

Reserve

Unit

Gold Zinc Uranium Bauxite Limestone Phosphates Manganese Iron

800 1.7 5000 1.2 40 20 10 2

Metric tonnes Million metric tonnes Metric tonnes Billion metric tonnes Million metric tonnes Million metric tonnes Million metric tonnes Billion metric tonnes

Source Extracted from, EITI, Mali, https://eiti.org/mali, last updated on 16 August 2019

the way that its value in the world declined.50 Commercial exploration and mining of gold began in 1984. The nation has three major gold mines which include Sadiola, Morila and Loula. Sadiola and Morila produced about 80% of the nation’s gold while the relatively new Loula mine has the potential of producing 250,000 ounces of gold per year. Besides gold, the country is rich in other mineral resources including, diamonds,51 bauxite, manganese, iron ore, limestone, phosphates and uranium. The country also has precious stones including, garnets, rare magnetic minerals, pegmatite, corindons, metamorphosing minerals, quartz and carbonates. Mineral deposits are primarily located around Kayes, Ansongo, Bafoulamé, Hombori, Tilemsi and western Mali.52 In Table 2.3 highlights some of the mineral reserves in Mali. As highlighted in Table 2.3, Mali has vast mineral resources. Although the mining sector is picking up in recent years in terms of contributing to the country’s economy, this has not always been the case. For decades the country had no tangible benefits from its extractives basically due to the unfavourable mining laws and fiscal regimes.

50Pascale Hatcher, Mali: Rewriting the Mining Code or Redefining the Role of the State? In Campbell, B.K. ed., 2004. Regulating Mining in Africa: For Whose Benefit? (Vol. 26). Nordic Africa Institute, p. 40. 51Diamonds in Mali are found in the form of both alluvial deposits and from kimberlite pipes. The Kenieba region has some of the nation’s well-known diamond deposits. 52EITI, Mali, https://eiti.org/mali, last updated on 16 August 2019.

2  Regulation of Mining in Africa     41

With respect to the legal framework, Mali’s 1999 Mining Code is one of the examples of the so-called third-generation mining codes.53 Just like the previous mining law in Ghana, Mali’s 1999 Mining Code aimed at attracting investors and with advice from the World Bank, the law provided for several incentives to investors which were detrimental to the economic development of the country. For instance, the code granted incentives such as exemptions from: income tax on professional earnings; income Tax on property income and tax on property in mortmain; Registration and Stamp Duties; Value Added Tax and Service Delivery Tax; Income Tax on investment incomes; Contribution on patents and Tax on insurance policies.54 Additionally, the privatization that followed had the effect of reducing the control of State over mining activities and as such the three main mines in Mali were controlled by companies managed by international consortia made up of international financial corporations as well as foreign companies Randgold and lamgold), as well as the International Financial Corporation, in addition to the government of Mali.55 Following the discussion above, it is evident why the people of Mali could hardly benefit from their minerals. Consequently, there were various reforms and as such, there has been an increase in the revenue collected from the extractives. For instance, 2016 records indicate that Mali received USD407 million from extractive industry taxation. Most of these revenues came from gold mining. Revenues were mainly collected through company taxation (25%) customs duties (14%), special tax on certain goods (13%).56 In an effort to ensure the good governance, transparency and accountability in the mining sector, Mali joined the EITI in 2007. 53Before

independence, Mali like all the French colonies relied on the 1899 government order which was imposed by the metropolitan France. This was replaced by the 1963 Mining Code which came into force after Mali was granted independence. This was amended in 1991 and further in 1999 granting more incentives to foreign investors. 54Pascale Hatcher, Mali: Rewriting the Mining Code or Redefining the Role of the State? In Campbell, B.K. ed., Regulating Mining in Africa: For Whose Benefit? p. 48. 55Pascale Hatcher, Mali: Rewriting the Mining Code or Redefining the Role of the State? In Campbell, B.K. ed., Regulating Mining in Africa: For Whose Benefit? p. 40. 56EITI, Mali, https://eiti.org/mali, last updated on 16 August 2019.

42     V. R. Nalule

2.2.2.4 Fourth Generation of Mining Codes There have been various reforms in the mining sector and these have necessitated the adoption of new mining laws which can arguably form the fourth generation of mining codes of the 2000s. For instance, in 2015 Burkina Faso passed its new mining law57; in 2016, Kenya also adopted its new mining act and in 2017, Tanzania adopted new laws relating to the mining sector.58 The new laws basically deal with the attraction of foreign investments and most importantly ensuring local participation and economic development from the mining activities. Given the global efforts to tackle climate change, the fourth generation of mining codes also emphasize the need for environmental protection. In this respect, environmental protection is now a key aspect of most mining legislations in Africa. There are several environmental protection agencies that have been created including the National Environmental Management Authority (NEMA) in Uganda, Kenya and Ghana. The obligation of these agencies is to protect the environment and in this respect mining operators must obey all the environmental laws and regulations. Environmental impact assessments must be conducted by mining companies, this is a requirement recognized by various mining legislations including in South Africa under Section 5 (4) and 39 of the Mineral and Petroleum Resources Development Act of 2002. Restoration of mining sites is also essential in the protection of the environment. The operator of the mining site should bear the financial burden for the restoration of mining sites.

The Case of Tanzania The new Tanzanian laws are a good example of the twenty-first-century motives of African states with respect to their minerals. The main law 57In Burkina Faso, The Mining Code was adopted by the National Transition Council on 26 June 2015. 58Several legislations were enacted in Tanzania including the Natural Wealth and Resources (Review and Re-negotiation of Unconscionable Terms) Act, 2017; the Natural Wealth and Resources (Permanent Sovereignty) Act, 2017 and many others.

2  Regulation of Mining in Africa     43

governing the mining sector is the Mining Act, Cap 123.59 However, several amendments were made to this Act by the Tanzania Extractive Industries (Transparency and Accountability) Act 2015 (TEIA). Although several scholars and stakeholders have referred to the moves in Tanzania as being drawn towards nationalism, we cannot ignore the fact that, the people of Tanzania just like many African countries have for decades only suffered the negative impacts associated with the extractive industry with little benefits due to the laws that mostly favoured investors. The new laws therefore are intended to rectify this problem, these laws include: The Natural Wealth and Resources Contracts (Review and Re-negotiation of Unconscionable Terms) Act 2017 and the Natural Wealth and Resources (Permanent Sovereignty) Act 2017. The amendments on the Mining Act also necessitated the enaction of a Finance Act in 2017. New regulations were also passed to give effect to the amendments in the mining act. These include the Mining (Mineral Rights) Regulations, 2018 (Mineral Rights Regulations), which repeals the Mineral Rights Regulations of 2010 and the Mining (Local Content) Regulations, G.N No. 3 of 2018 (Local Content Regulations). African countries have in the past negotiated contracts that were detrimental to their people. This is partly due to lack of expertise at the national level which was used at the advantage of foreign investors; and due to lack of transparency whereby the agreements were not made available for public scrutiny. This is changing in some countries such as Tanzania, where the government is now mandated to renegotiate or remove terms from investor-state agreements that Parliament considers ‘unconscionable ’.60 To make the agreements more transparent, the Tanzanian government also requires Parliamentary approval for future investor-state agreements, which must ‘fully secure ’ the interests of Tanzanian citizens, and restricts investors from exporting raw minerals, repatriating funds and accessing international dispute resolution mechanisms.61 59The

Mining Act, Cap 123 (Act No. 14 of 2010), Laws of Tanzania. is provided for under the Natural Wealth and Resources Contracts (Review and Re-negotiation of Unconscionable Terms) Act 2017. 61This is provided for under the Natural Wealth and Resources (Permanent Sovereignty) Act 2017. 60This

44     V. R. Nalule

In the first and second generation of mining codes, we noted the ridiculous tax incentives extended to foreign companies. To rectify this issue, in 2017, amendments were made in Tanzania and these had the effect of increasing the royalty rate from 4 to 6% with respect to minerals exports such as gold, copper, silver and platinum. In addition, the amendments introduced a clearing fee of 1% (as a new requirement) on the value of all minerals exported outside Tanzania from 1 July 2017. In an endeavour to ensure that the government of Tanzania has some control and ownership over its minerals, further amendments were made on the Mining Act which made it mandatory for all mining licensees or special mining licence holders to give the government at least a 16% free carried interest in the capital of their companies. The government is also entitled to acquire (in total) up to 50% of the shares in a mining company, proportional with the quantified value of tax expenditures incurred by the government in favour of the mining company. These amendments were made in July 2017 in terms of the Written Laws (Miscellaneous Amendments) Act, 2017. Additionally, the amendments support local content and as such mineral right holders are obliged to buy goods which are produced in Tanzania or the services that are rendered by local companies or citizens. Drawing from the discussion above, we note that the current mining laws of the 2000s have evidenced an increase in the re-regulation of the mining sector by embracing more reforms. These reforms have definitely been inspired by the need to address issues relating to local participation and local content; artisanal and small-scale mining; corporate social responsibility; social, economic and environmental impact just to mention but a few. In the next subsections, various provisions of the mining laws will be discussed including mining rights, licences and contracts.

2.3 Rights and Obligations Under Mining Laws 2.3.1 Mining Rights Mining rights grant an individual or company permission to extract minerals from a piece of land. Albeit, these should not be confused with property rights which stipulate rights of property owners. In this

2  Regulation of Mining in Africa     45

respect, besides mining laws and regulations, other laws have to be put into consideration including land laws which stipulate the rights of landowners and tenants. A question may arise as to whether the owner of a piece of land also owns the minerals and resources underneath? In most jurisdictions, ownership of minerals is vested in the government on behalf of the people. The State therefore is a custodian of mineral resources on behalf of its people. In this respect, the State has the responsibility of transforming whatever revenue it gets from the minerals into tangible infrastructure such as roads, hospitals, schools and many others which can improve the citizens’ standard of living. Taking stock of the above therefore, we note that, the State has sovereignty over its natural resources and as such any person or company can only acquire mineral rights through the acquisition of the necessary mining licences and leases. We note however that not everyone can acquire such mining rights. Some jurisdictions in Africa have restrictions on whom can acquire mineral rights. In most cases these restrictions put into consideration the age, financial capability and nationality/citizenship of the person concerned. Indeed, under the law, a person can be an individual or a registered company. In Uganda for instance, mineral rights are restricted to Ugandan citizens above the age of 18 and/or companies registered in Uganda or incorporated under the Companies Act of Uganda. Additionally, it is essential for interested individuals or companies to have a good financial record, in this respect Section 5 of the Ugandan Mining Act is to the effect that individual applicants should not be bankrupt or in the case of a corporation undergoing liquidation.62

2.3.2 Mining Licences As discussed in the last section, the ownership of minerals in most African countries is often vested in the government on behalf of the people. In this respect, an individual or company will require a mining licence or lease to acquire mineral rights. 62Section 5

of the Mining Act of Uganda, 2003, Laws of Uganda.

46     V. R. Nalule

A mining licence basically gives a person/company the rights to mine the specified minerals on a defined area for an agreed period of time. Mining licences include a prospecting licence, an exploration licence, a retention licence and a mining lease or location licence. The different types of licences are highlighted in Table 2.4, particularly referring to examples from Ugandan laws. As illustrated in Table 2.4, different licences grant the holder different rights. The prospecting licence for instance grants the holder prospecting rights while an exploration licence grants exclusive rights to carry out exploration operations in the land in question. There are steps which the holder must take in order to acquire these licences and these are well stipulated in the relevant laws and regulations. These steps may differ depending on the country in question. Taking the example of Uganda, the Mining Regulations under Part II, III, IV, V, VI and VII provide in detail the steps applicants should consider when applying for the prospecting licence, exploration licence, retention licence, location and mining leases respectively.63 These steps are briefly outlined in Table 2.5. As illustrated in Table 2.5, there are various institutions relevant in the granting of mining licences and in the general governance of the mining sectors. For the case of Uganda for instance, the key institutions responsible for the mineral sector include the Ministry of Energy and Mineral Development; the Directorate of Energy and Mineral Development and the Geological Survey and Mines Department. Key officials include the Minister, the Commissioner and other senior officials. The Commissioner for the Geological Survey and Mines Department has several duties regarding mining licences and leases and as such has the powers of granting, transferring, cancelling, suspending and renewing mining licences/leases or export and import permits; powers of inspection and information gathering. These powers can also be exercised by the Minister or delegated to other senior officials in the Ministry of Energy and Mines.

63Uganda

Mining Regulations, 2004.

Exploration licence

Retention licence

• Prospecting is the • Gives the holder • Grants a holder first stage of the more time for planexclusive rights to geological analysis carry out exploration ning and obtaining • Allows the holder to financing operations in the prospect for minerals land in question • It is a holding • It involves physical • In some jurisdictions, title for a mineral search for minerals resource which it doesn’t exceed • It is mineral- or has been identithree years area-specific fied but cannot be • In some jurisdictions mined or explored it is valid for one immediately year

Prospecting licence

Table 2.4  Mining licences and leases • It grants the holder the right to develop, mine and produce the mineral deposits in the land in question

Mining lease

• It applies to smallscale miners (see for instance section 54 of the Mining Act of Uganda) • It grants them a right for prospecting and mining in the areas where the licence applies

Location licence

2  Regulation of Mining in Africa     47

Be lodged (in five copies) with the CAO of the district concerned within thirty days of the erection of a location beacon for forwarding to the Commissioner

Inform the Chief Administrative Officer (CAO) of the intended entry and departure of the licensee in the district concerned

Disclose the quality and Application to be accompaquantity of minerals nied by: specified mineral obtained in the course of rent; a map of the area the prospecting operations concerned; a programme of exploration operations; project brief and estimate of workers

Be accompanied by: a map; mining plan; statement on the state of the environment; mineral rent and fees and the costed reclamation plan

Set up the specified and required temporary location beacons

Pay specified fees and make Set up the specified and an application made to the required temporary locaCommissioner tion beacons

Application be lodged with the CAO of the relevant district for processing within 30 days of erection of a location beacon for forwarding to the Commissioner

Location licence (Part VI of the regulations)

Exploration licence (Part IV of the regulations)

Prospecting licence (Part II of the regulations)

Table 2.5  Steps to be taken in applying for mining licences

Be accompanied by: a map; a statement of the number of landowners and their express consent; applicable mineral rent and fees; certificate of approval of environmental impact assessment

Application be lodged with the CAO of the district concerned within thirty days of the erection of a location beacon for forwarding to the Commissioner

Mark out the area over which a licensee desires a lease

Mining leases (Part VII of the regulations)

48     V. R. Nalule

2  Regulation of Mining in Africa     49

Besides national laws and regulations, we have to consider the regional initiatives to govern the mining sector on the African continent such as the AMV. AMV is a policy framework that was created by the African Union in 2009 to ensure that Africa utilizes its mineral resources strategically for broad-based inclusive development. It has been more than a decade since the AMV came into existence, the question that arises and which needs to be addressed is whether the AMV has chances of being implemented? How can African leaders embrace the AMV and how can this instrument tackle the pertinent challenges in the African mining sectors? These questions will not be addressed in this book but they are worth considering if the African continent is to move towards regionalism.64

References Laws and International Instruments Vienna Convention on Succession of States in respect of Treaties, 1974. The African Charter on Human and Peoples Rights of 1981. Resolution 1314 (XIII) of the Commission on Permanent Sovereignty over Natural Resources of 12 December 1958. General Assembly Resolution 1803 (XVII) of 14 December 1962—Permanent sovereignty over natural resources. Resolution 2200 A (XXI) of 16 December 1966—International Covenant on Economic, Social and Cultural Rights. OPEC Resolution XVI.90 of 24 June 1968—Declaratory Statement of Petroleum Policy in Member Countries. The Declaration of the United Nations Conference on the Human Environment (Stockholm Declaration), 1972. General Assembly Resolution 3281 (XXIX) of 12 December 1974—Charter of Economic Rights and Duties of States. The 1995 Constitution of Uganda (as amended).

64For

a full discussion on regionalism in Africa, see Nalule, V.R., 2018. Energy Poverty and Access Challenges in Sub-Saharan Africa: The Role of Regionalism. Springer.

50     V. R. Nalule

The 1992 Constitution of Ghana. The National Environment Act of 1995 (Cap 15), Laws of Uganda. The Income Tax Act, CAP 340 (as amended), Laws of Uganda. The Land Act, CAP 227 (as amended), Laws of Uganda. Uganda Mining Regulations, 2004, Laws of Uganda. The Mines and Minerals Act, 2007, Laws of Nigeria. The Mining Act, 2010, Laws of Tanzania. The Natural Wealth and Resources (Review and Re-Negotiation of Unconscionable Terms) Act, 2017, Laws of Tanzania. The Natural Wealth and Resources (Permanent Sovereignty) Act, 2017, Laws of Tanzania. Tanzania Extractive Industries (Transparency and Accountability) Act, 2015 (TEIA). The Natural Wealth and Resources Contracts (Review and Re-Negotiation of Unconscionable Terms) Act, 2017. The Natural Wealth and Resources (Permanent Sovereignty) Act 2017. Finance Act, 2017, Laws of Tanzania. The Mining (Mineral Rights) Regulations, 2018 (Mineral Rights Regulations), Laws of Tanzania. The Mining and Minerals Act, 2006 (Act 703), Laws of Ghana. Minerals Commission Act, 1993 (Act 450), Laws of Ghana.

Books, Articles and Other Sources Aryee, B.N.A., 2001. Ghana’s Mining Sector: Its Constitution to the National Economy. Resources Policy, 27, 61–75. Cameron, P.D., and Stanley, M.C., 2017. Oil, Gas, and Mining: A Sourcebook for Understanding the Extractive Industries. The World Bank. Campbell, B.K. ed., 2004. Regulating Mining in Africa: For Whose Benefit? (Vol. 26). Nordic Africa Institute. Nalule, V.R., 2018. Energy Poverty and Access Challenges in Sub-Saharan Africa: The Role of Regionalism. Springer. Thomas Akabzaa: Mining Legislation and Net Returns from Mining in Ghana. In Campbell, B.K. ed., 2004. Regulating Mining in Africa: for Whose Benefit? (Vol. 26). Nordic Africa Institute. Tiess, G., 2011. General and International Mineral Policy: Focus: Europe. Springer Wien, New York.

3 Social and Environmental Impacts of Mining

Abstract  Mining activities are associated with various social, economic and environmental impacts. Economically, they contribute to government revenue and employ a significant number of people. There are however some social negative impacts associated with mining including violence, child labour, escalation of gender inequalities, health and environmental effects including deforestation and pollution. In this section, the focus will be on artisanal and small-scale mining (ASM). However, environmental impacts of industrial sand mining will be explored. Keywords  Artisanal and Small-Scale Mining · Social impacts of mining · Environmental impacts of mining · Sand mining · Health and safety in mining · Violence in mining · Child labor in mining · ASM formalisation · Climate change · Mine rehabilitation Mining activities are associated with various social, economic and ­environmental impacts. Economically, they contribute to government revenue and employ a significant number of people. There are however some social negative impacts associated with mining including violence, © The Author(s) 2020 V. R. Nalule, Mining and the Law in Africa, https://doi.org/10.1007/978-3-030-33008-8_3

51

52     V. R. Nalule

child labour, escalation of gender inequalities, health and environmental effects including deforestation and pollution. In this section, the focus will be on artisanal and small-scale mining (ASM). However, environmental impacts of industrial sand mining will be explored.

3.1 Artisanal and Small-Scale Mining in Africa ASM has attracted a lot of attention in recent years following the increasing number of people relying on this activity in developing countries. Basically, ASM involves miners who carry out mining activities using their own resources and tools. These miners work independently from mining companies. Whereas, artisanal mining focuses on substance miners, small-scale mining on the other hand includes enterprises or individuals that employ workers for mining. The main characteristic of ASM is the use of hand tools to carry out mining activities. Regulation and governance of ASM has been a critical issue in many African countries and this has not only seen efforts in formalizing the sector but also extreme measures such as temporary presidential bans in countries such as Uganda and Democratic Republic of Congo (DRC). For instance, in the DRC, there was a presidential ban that formally decreed the sector be shut down for a six-month period from late 2010 to early 2011.1 In Uganda, the presidential ban was effected in August 2017 when over 6000 ASM miners were evicted from the Mubende mines.2 These miners were however allowed to carry out their activities after negotiations with the Government and several efforts to formalize the sector were initiated. In Mali, ASM was suspended for three months in 2017 with the main objective of restructuring the sector. This clearly shows the various efforts taken in different African countries to ensure

1Vogel, C., Musamba, J., and Radley, B., 2017. A Miner’s Canary in Eastern Congo. Extractive Industries and Society, 5(1), pp. 73–80. 2Aljazeera, Uganda’s Gold Boom Leaves Small-Scale Miners Behind, https://www.aljazeera.com/ ajimpact/uganda-gold-boom-leaves-small-scale-miners-190719030225658.html, last accessed on 1 September 2019.

3  Social and Environmental Impacts of Mining     53 Table 3.1  Employment estimates for ASM Country

Directly working Estimated Main minerals in ASM No. of dependents mined on ASM

Burkina Faso Central African Republic Ethiopia Guinea Mali Ghana Sierra Leone Niger Nigeria

200,000 400,000

1,000,000 2,400,000

Gold Gold, diamonds

500,000 300,000 400,000 1,100,000 300,000 450,000 500,000

3,000,000 1,500,000 2,400,000 4,400,000 1,800,000 2,700,000 2,500,000

Gold Gold, diamonds Gold Gold, diamonds, sand Gold, diamonds, coltan Gold Gold

Source Hilson, G., and Maconachie, R., 2017. Formalising Artisanal and SmallScale Mining: Insights, Contestations and Clarifications. Area, 49(4), pp. 443–451

that ASM is well regulated. Albeit, there are still challenges in ensuring effective formalization and regulation of ASM. There are social, environmental and economic impacts associated with ASM. Economically, for instance, ASM employs a significant number of local people in different African countries. For instance, it is estimated that over 500,000 people are directly involved in ASM in Zimbabwe; 150,000 in Uganda; 1,500,000 in Tanzania; 20,000 in South Africa; 200,000 in South Sudan; 200,000 in DRC and many others in different African countries as illustrated in Table 3.1.3 As illustrated in Table 3.1, there are many people who are directly employed in ASM and there are equally many people who are dependent on ASM. In Ghana for instance, over four million people are dependent on the ASM miners while in Ethiopia, over three million people are dependent on the five hundred thousand ASM miners. This therefore makes ASM a very crucial and important sector in developing countries as it has a significant role to play in the eradication of poverty. In addition to employment, ASM also contributes to the national revenue and

3Hilson,

G., and Maconachie, R., 2017. Formalising Artisanal and Small-Scale Mining: Insights, Contestations and Clarifications. Area, 49(4), pp. 443–451.

54     V. R. Nalule Table 3.2  Key issues in ASM Issue

Description

Child labour

Children miss schools and are Salt, gold, cobalt, diamonds exposed to the negative effects of mining This has proved difficult and Gold, cobalt, diamonds miners find it hard to get licences Gold, sand, cobalt, Deforestation and use of diamonds chemicals which affect the environment

Formalization

Environmental challenges

Mining sector

it also contributes to the mineral output. Taking the example of artisanal gold mining (AGM), it also contributes significantly to the global gold production. For instance, as of 2012, AGM accounted for approximately 12% of all the gold produced in the world.4 In Mali, ASM accounts for about 10% of the total gold production as of 2018.5 Besides the economic impacts, there are other social and environmental issues associated with ASM including lack of adequate data on the exact number of miners involved in ASM and the exact ASM activities; gender inequality especially with respect to the disparities in earnings women get from ASM as compared to men; use of rudimentary methods to mine including hand tools and several other issues as highlighted in Table 3.2. There are indeed various social and environmental impacts ­associated with ASM. In this chapter, the focus will be on ASM formalization, child labour and environmental impacts, these are briefly discussed below.

3.1.1 ASM Formalization ASM in most developing countries is characterized by informality and as such majority of ASM miners operate without legal titles. 4Veiga,

M.M., Angeloci-Santos, G., and Meech, J.A., 2014. Review of Barriers to Reduce Mercury Use in Artisanal Gold Mining. The Extractive Industries and Society, 1(2), pp. 351–361. 5EITI, Mali, https://eiti.org/mali, last updated on 16 August 2018.

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The Cambridge English dictionary defines informality as a state of not being official or formal.6 With respect to ASM, informal mining means that miners operate without authorization from the Government. As discussed in Chapter 2, mining rights are acquired through the issuance of licenses and leases, for informal ASM therefore, miners carry out their activities without the required mining licenses. Although informality in ASM has proved to be an issue of global interest, we need to note that historically, miners in Africa were involved in mining and these did not need authorization from the central government (governments did not even exist by then). Mining and agriculture were some of the major activities ancient Africans carried out to feed their families. As discussed in Chapter 2, it is only after colonization and the greed for minerals that colonial masters set up laws which had the effect of infringing on the rights of people over their mineral resources. This is the basis for terms such as ‘illegal mining’ and ‘informal mining’. Albeit, we cannot ignore the fact that ASM employs a significant number of poor people in developing countries and as such it plays a major role in the social and economic development of the countries in question. Nevertheless, informality in ASM has escalated human rights abuses and environmental degradation. Consequently, there are efforts in different developing countries to formalize ASM. Moreover, international organizations and financial institutions including the World Bank and the UN have in recent years been involved in initiatives that are aimed at encouraging governments especially in Africa, Latin America and Asia to formalize ASM. Basically, formalization entails the enactment and adaptation of mining laws and policies which recognize and regulate ASM. While discussing ASM, scholars have further defined formalization as the ensemble of deliberate policies, techniques and other undertakings to make people, things and actions in a given field legible to regulatory authority, including both state institutions as well as other actors that claim and acquire such.7 6See,

Cambridge English Dictionary. It can be accessed at https://dictionary.cambridge.org/ dictionary/english/informality. 7Vogel, C., Musamba, J., and Radley, B., 2017. A Miner’s Canary in Eastern Congo. Extractive Industries and Society, 5(1), pp. 73–80.

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Basically, the essence of formalization is to control illegal activities in ASM by ensuring that miners acquire legal titles. The importance of acquiring legal titles is that they grant miners various rights including: transfer rights; rights to successive permit renewals and exclusivity; access to land for exploration; extraction and processing rights; access to markets and access to the relevant government agencies. With respect to governments, formalization is important as it ensures that the State acquires control over ASM activities through monitoring, regulation and tracking of mining activities. This in effect enables the central government to maximize revenue from ASM. With respect to taxation, mining cooperatives have also played a significant role. In a survey carried out in DRC, it was indicated that several miners made contributions to mining cooperatives. However, although some mining cooperatives are genuine, the survey revealed that other cooperatives were associated with fraud, as these were only looking out for the interests of business traders, customary leaders and the occasional non-governmental organization dealing with anything generating funding.8 Moving forward, we note that formalization has both the possibility of positively impacting on miners, i.e. for the case of improved working conditions and security; or negatively impacting on miners especially where it escalates poverty due to the complicated procedures which might be hard for miners to follow (given that most artisanal miners are not well educated). In this respect, therefore, there are various challenges to formalization including lack of finances; property rights where ASM miners in most cases lack legal land titles; lack of technical expertise; inadequate education and training, just to mention but a few. Issuing of land titles and mining concessions is essential in the formalization process, however these issues remain unaddressed in many African countries.

3.1.1.1 DRC Case Study DRC, is an East African country which is endowed with various natural resources. In terms of minerals, the country is known for its massive deposits of gold, tin, tantalum, cobalt, copper and diamonds. According 8Ibid.

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to the United States Geological Survey, DRC has an estimate of 1 million tonnes of lithium resources. Additionally, DRC has the world’s largest reserves of coltan and cobalt. The mineral resources in the DRC have been the source of wars and conflict and there have been efforts and campaigns aimed at improving the mining industry such as the ‘no blood in my mobile’. With respect to ASM, the country has a significant number of artisanal miners. It is estimated that the sector sustains around 200,000–550,000 workers and 1–4 million dependants.9 There have been efforts to reform the ASM sector as evidenced in various initiatives including formalization, traceability and certification of the region’s trade in tantalum, tin and tungsten (3T). It has however been argued that the incompatibility of ASM with corporate-regulatory structures prevents a purely positive impact of traceability and certification on local production and trade. Additionally, the reforms in ASM have led to human rights abuses and extreme poverty.10 In a survey carried out in DRC, 72% of the miners indicated that traceability lessened fraud in the mines while 60% indicated that it reinforced state presence and authority in mining areas. There were also instances of illegal taxation, for instance in a survey carried out in DRC, 36% of the respondents indicated illegal taxation. This includes 7.2% who report that the provincial anti-fraud service is collecting informal taxes and 8% who said ITRI’s Tin Supply Chain initiative (iTSCi) staff levies illegal taxes at the mine site. Often, landowners also receive taxes on production. SAESSCAM, iTSCi’s Congolese implementation partner is engaged in both formal taxation (they collect fees for record cards and duties on production) and various parafiscal practices that revolve around negotiable contributions for placing iTSCi tags on the mineral bags prior to transport (usually between 0.5 and 1.5 USD per tag).11 DRC just like other African countries including Ghana, Uganda, South Sudan, Mali and many others still have a long way to go to ensure the formalization and regulation of ASM. There is a need to

9Ibid. 10Ibid. 11Ibid.

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increase the monitoring mechanisms and this will help to have adequate data concerning ASM. Additionally, massive mobilization and trainings for ASM miners is essential in addressing the health and environmental issues associated with ASM.

3.1.2 Child Labour One of the key issues that need to be tackled in ASM is child labour. Indeed, child labour is not only associated with ASM but also other sectors and as such there have been global efforts to tackle it both at national, regional and international level. Internationally, in addition to 12th June, a day launched by the International Labour Organization (ILO) in 2002, as the World Day Against Child Labour, there is also a special day of 16th June celebrated on the African continent as the Day of the African Child. The origin of this day dates back as far as 1991 when it was first initiated by the Organisation of African Unity in honour of those who participated in the Soweto uprising—and it has since then been used to raise awareness of the need for improvement in not only the education but also welfare of the African children. Despite the various discussions and initiatives at international, regional and national level, the children across the globe continue to be deprived of their childhood due to several activities in various sectors leading to rights abuses, including enormous cases of child abuse both at schools and homes; children being victims of ongoing wars mostly in oil and mineral resource-rich countries such as South Sudan, DRC and other African countries, hence forcing an estimate of about 12.6 million children to drop out of school, suffer abductions, sexual violation and other grave violations. Whereas there are other sectors that need to be investigated to protect the African child, the focus of this section is to explore the extent and effects of child labour in ASM. Prior to this however, it is essential to define child labour and also identify the form it takes in ASM.

3.1.2.1 What Is Child Labour? Before defining child labour, we need to be aware of the legal definition of a child. Article 2 of the ILO Convention No. 182 on the worst forms

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of child labour, defines a child as a person under the age of 18.12 Besides the ILO Convention, other relevant conventions with respect to child labour include, the UN Convention on the Rights of the Child; the ILO Minimum Age Convention, 1973 (No. 138); the Worst Forms of Child Labour Convention, 1999 (No. 182); ILO Convention No. 138 on the legal minimum age and national legislations. We however must note that not all work done by persons below the age of 18 falls under child labour. It is acceptable that children can help their parents with work or even be formally employed if the work doesn’t interfere with their personal development and school hours. Basically, child labour is the outcome of a complex household decision-making process.13 The subject has indeed attracted various scholarly articles.14 Understanding the definition of child labour however is essential in tackling the challenge in the mining sector. It is true that not all work undertaken by children can be classified as child labour, especially if this includes helping out parents in small tasks, family business or formal work outside school hours that enhance the personal development of the child. Whereas child labour focuses on work that affects the health and personal development of the child, we note that children are often involved in activities that although might not directly affect their health immediately, these, in the long run, have the capability of interfering in their personal development. In the mining sector however, most activities not only affect the health of the child miners but also interfere with their schooling and personal development.

12Convention

Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour (Worst Forms of Child Labour Convention, 1999 [No. 182]). 13Dammert, A.C., de Hoop, J., Mvukiyehe, E., and Rosati, F.C., 2018. Effects of Public Policy on Child Labor: Current Knowledge, Gaps, and Implications for Program Design. World Development, 110, pp. 104–123; Menon, N., and van der Meulen Rodgers, Y., 2018. Child Labor and the Minimum Wage: Evidence from India. Journal of Comparative Economics, 46(2), pp. 480–494; Del Rey, E., Jimenez-Martin, S., and Castello, J.V., 2018. Improving Educational and Labor Outcomes Through Child Labor Regulation. Economics of Education Review, 66, pp. 51–66; Ghouth, A.S.B., Taleb, M.A.B., Hadi, A.A., Algarzi, M.M., Bahartah, A.A., Taleb, E.H.B., Ba-dokhon, K.A., Alsayari, M.M., Khader, M.M., Nasser, K.M., and Baju, S.A., 2018. Prevalence of Child Labor Among Elementary School Students from 5th to 9th Grade in al Mukalla. Global Journal of Human-Social Science Research. 14Resolution concerning statistics on child labor, adopted by the 18th ICLS in 2008.

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In simple terms, ‘child labour’ is often defined as work that deprives children of their childhood, their potential and their dignity, and that is harmful to physical and mental development. According to the Resolution concerning statistics on child labour, child labour involves the engagement of prohibited work which is considered to be socially and morally undesirable.15 When measuring child labour, focus is put on persons aged 5–17 years who are involved in: worst forms of child labour; employment below the minimum age and hazardous unpaid household services.16 Most work in the mining sector is risky and poses a danger to the health of miners involved. In this respect, it falls under hazardous work. Article 3 of the ILO Recommendation No. 190, sets out the criteria for determining hazardous work conditions of children at the national level including: a. work which exposes children to physical, psychological or sexual abuse; b. work underground, underwater, at dangerous heights or in confined spaces; c. work with dangerous machinery, equipment and tools, or which involves the manual handling or transport of heavy loads; d. work in an unhealthy environment which may, for example, expose children to hazardous substances, agents or processes, or to temperatures, noise levels, or vibrations damaging to their health; e. work under particularly difficult conditions such as work for long hours or during the night or work where the child is unreasonably confined to the premises of the employer.17 Mining activities are with no doubt under the worst forms of child labour. Article 3 defines the meaning of worst forms of child labour to comprise of: 15Ibid. 16Article

15 Resolution concerning statistics on child labor, adopted by the 18th ICLS in 2008. Article 3 of the Recommendation concerning the prohibition and immediate action for the elimination of the worst forms of child labour (Worst Forms of Child Labour Recommendation, 1999 [No. 190]). 17See,

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a. all forms of slavery or practices similar to slavery, such as the sale and trafficking of children, debt bondage and serfdom and forced or compulsory labour, including forced or compulsory recruitment of children for use in armed conflict; b. the use, procuring or offering of a child for prostitution, for the production of pornography or for pornographic performances; c. the use, procuring or offering of a child for illicit activities, in particular for the production and trafficking of drugs as defined in the relevant international treaties; d. work which, by its nature or the circumstances in which it is carried out, is likely to harm the health, safety or morals of children. Although there are instances where children in mining communities can be involved in all the four aspects above, i.e. slavery; prostitution; involvement in illicit activities and harmful activities—the focus in this section is the last one relating to work ‘likely to harm the health, safety or morals of children’. This is due to the fact that ASM activities by their nature directly harm the health and safety of children.

3.1.2.2 Analysis of Child Labour in ASM Naturally, ASM activities are hazardous as they expose miners to dangerous chemicals, air pollution, deadly accidents and health risks. As indicated in Chapter 2, ASM employs a significant number of poor people in developing countries, and consequently has also escalated child labour in these countries. Children in different African countries such as Uganda, Tanzania, DRC, Zimbabwe, Malawi are involved in mining gold, cobalt, diamond, tin as well as quarry stones. Mining and quarrying are among the most dangerous and unhealthy occupations, the working conditions in these sectors are not good for adults let alone for children who are exposed to deadly accidents, health risks and mercury, a highly toxic substance. In the DRC for instance, 20% of the cobalt exported comes from artisanal mines in the southern part of the country. Amnesty International in the past claimed to have traced cobalt used in lithium

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batteries sold to big multinational brands to DRC mines where children were being exploited. It is worth noting that half of the world’s supply of cobalt comes from the DRC and this is mostly used in batteries and in electroplating, and whereas cobalt and other minerals mined by African children have enriched various developed countries and multinational corporations, who have been able to set up favourable living conditions for their children including quality education, health care and general public infrastructure, on the other hand, the African child miners in DRC and other African countries have only suffered the negative effects associated with mining these resources. An estimate of over one million children between the age of 5 and 7 are believed to be working in small-scale mining and quarrying sectors and these children are lured into these activities due to the poverty in their homes. These children are also engaged in all aspects of mining including the rock breaking, transporting of minerals and the crushing and pounding. Child miners run the risk of not only mercury poisoning, but also being exposed to severe injury, diseases and risks of death, be it in mining or quarrying sectors. Another effect of child labour is the loss of an opportunity to acquire an education. In a survey conducted in DRC’s South Kivu’s ASM sector, it was revealed that 45% of the miners enjoyed some secondary or university level education. However, two-thirds of the survey respondents said that their children would not or only intermittently go to school.18 Several initiatives to stop child labour in the mining sector have been set up. In the DRC for instance, a Pact project—Watoto Inje ya Mungoti (Children out of Mining) is involved in sensing local people about the dangers of child labour. Different approaches are used including various community governance committees, awareness-raising and positive parenting skills training, peer exchanges, traditional song and dance, sport, children’s interactive forums and traditional signage and radio media strategies. In some of the mines I visited including sand, salt and gold miner, I encountered children who were working alongside their parents. 18Vogel, C., Musamba, J., and Radley, B., 2017. A Miner’s Canary in Eastern Congo. Extractive Industries and Society, 5(1), pp. 73–80.

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These children were not only missing schools but were also being exposed to the negative impacts of mining. For instance, I interviewed a young boy who was working with his father in the Salt mine in Katwe, Uganda. The boy had no gloves or boots and yet he was working in the saltwater. He had wounds on his feet and hands and due to lack of medical care, he had to put super glue on the wounds so that he can continue working.19 Another challenge I identified was that female miners had nowhere to leave their infant children and as such these mothers were forced to bring their infants to the mines.20

3.1.3 Health and Safety There has been an increasing number of health and safety issues in various mining communities. Taking the example of ASM, most miners operate without basic protective equipments such as gloves, boots and goggles. ASM by its nature involves the use of hand tools and rudimentary methods to extract minerals. In this respect, besides lack of protective gears, ASM is associated with the use of dangerous chemicals such as mercury; poorly constructed shafts/tunnels; poor waste management leading to contamination and diseases—all of which pose health and safety risks. In AGM for instance, miners still use rudimentary methods such as amalgamation to extract gold. Gold amalgamation necessitates the use of mercury, which has various health and environmental impacts. Gold amalgamation is one of the oldest forms of extracting gold: mercury is added to silver and gold to form an amalgam (paste) and it amalgamates all metals except iron and platinum.21

19See,

video on my YouTube Channel, Victoria Nalule. https://www.youtube.com/watch?v= 8RQlC-COEI0&t=255s and https://www.youtube.com/watch?v=RKFP6DswMrM&t=991s. 20Watch videos I recorded in the Salt and gold miners at my YouTube Channel, Victoria Nalule. https://www.youtube.com/channel/UCv0uKKTJ46HyoiebqH7xPEQ/videos?view_as=subscriber. 21For a full discussion on this see Veiga, M.M., Angeloci-Santos, G., and Meech, J.A., 2014. Review of Barriers to Reduce Mercury Use in Artisanal Gold Mining. The Extractive Industries and Society, 1(2), pp. 351–361.

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In the gold mine I visited in Mubende, Uganda, miners were using mercury, and these had no protective gears including gloves and boots. However, I was impressed by their level of knowledge as they were aware of the negative impacts associated with the use of mercury and were willing to take precaution measures.22 The situation is indeed similar in other countries including Ghana and Mali. Besides the use of chemicals, rudimentary and unsafe methods employed in ASM have often led to massive deaths of artisanal miners. For instance, in February 2019, over ten miners drowned in Kadoma, Zimbabwe. They died following the heavy rains which flooded two mines including Silver Moon Mine and Cricket Mine. The Cricket Mine is owned by Rio Zimbabwe and the company alleged that miners had illegally gained access to sealed shafts at the mine which was not in operation.23 Some scholars have suggested access to modern energy as being essential in addressing challenges faced by ASM miners and this is due to the fact that these miners need access to advanced technology and this cannot be achieved without access to modern energy.24 Moving forward, besides the health and safety challenges experience in ASM, there also similar challenges in large-scale mining. Although large-scale mining is always thought to be safe most of the time, we note that some companies are reluctant to provide adequate protective gears to their workers. All these were visible during the fieldwork trip I carried out in various mining communities.25 It is true that various mining legislations have elaborative health and safety provisions but the question which arises is, how can these provisions be enforced to ensure that the health of miners is protected? One thing that has been common for large-scale mining is the assurance that they have the capacity to adhere to health and safety laws before they are granted mining

22Visit my YouTube Channel to watch the interview I did at the Gold mine in Uganda. https:// www.youtube.com/watch?v=HuWmudeSz_A. 23Zimbabwe Gold Miners Feared Dead in Kadoma Flood, BBC News, https://www.bbc.co.uk/ news/world-africa-47238271, last updated on 14 February 2019. 24Nalule, V.R., 2018. Energy Poverty and Access Challenges in Sub-Saharan Africa: The Role of Regionalism. Springer. 25See, Victoria Nalule YouTube Channel.

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licence. This requirement is indeed reflected in some mining legislations such as the Mining Code of Mali under Section 31 and 39.26 Failure to comply with health and safety requirements can lead to the withdrawal of a mining licence as is the case in Rwanda and Ethiopia.27 Companies have indeed been involved in health and safety measures including displaying of the relevant safety rules in their areas of operation; training of workers and establishment of personnel equipment rules. These are well stipulated in some mining laws such as in the Mining Code of DRC with respect to display of safety rules28; Malawi with respect to establishment of personnel equipment rules29; and Rwanda with Respect to Training of Workers.30 Besides the mining acts there also specific laws that apply to health and safety and these in effect supplement the provisions contained in mining legislations. In Uganda for instance, there is an occupational Safety and Health Act31; the same Act is available in Kenya and other African countries.32 There is however a need to ensure enforcement of health and safety requirements in ASM and this can only happen if the governments are able to monitor these activities.

3.1.4 Violence and Conflicts ASM has in the past benefited the local people in resource-rich countries. However, it has in recent years been characterized with violence especially in instances where foreign companies attempt to take over the mining areas where ASM miners operate or in the case of Ghana, where 26Sections 31

and 39 of Law No. 2012-015 of 27 February 2012 Enacting the Mining Code, Laws of Mali. 27For Ethiopia, Article 44 of Proclamation No. 678/2010 Promoting Sustainable Development of Mineral Resources; For Rwanda, Article 25 of Law No. 13-2014 of 20 May 2014 On the Exploitation of Mines and Quarries. 28Section 210 of Law No. 007-2002 of 11 July 2002 Enacting the Mining Code. Democratic Republic of Congo. 29See, Articles 13 and 14 of the Mining (Safety) Regulations of Malawi. 30See, Article 33 of Law No. 13-2014 of 20 May 2014 On the Exploitation of Mines and Quarries, Laws of Rwanda. 31The 2006 Occupational Safety and Health Act, Laws of Uganda. 32The 2007 Occupational Safety and Health Act, Laws of Kenya.

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Chinese migrants attempted to dominate AGM . For instance, in 2013, ASM in Ghana attracted Chinese illegal miners who got into conflict with the local miners.33 An estimate of about 50,000 Chinese illegal miners mostly exclusively from Shanglin County in Guangxi province were involved in AGM in Ghana. Consequently, there was a deportation of over 4000 Chinese citizens who were involved in ASM.34 Besides the violence between Chinese miners and the local people, there was an escalation of armed robbery in AGM often blamed on the guns brought in by the Chinese to protect themselves. Additionally, violence is escalated by the trafficking and use of narcotics, as some miners use cocaine and other drugs to get the courage to work in dire conditions.35 ASM especially gold mining has also been associated with gang battles. In 2015 for instance, gang battles associated with illegal gold mining were reported in South Africa, as criminal gangs took over control over disused and abandoned tunnels. Nevertheless, criminal activity in South Africa is also attributed to poverty, decline in gold mining, unemployment and illegal migration.36 Considering the various social impacts associated with mining, there have been several initiatives to tackle these issues. A case in point is the iTSCi: This is an industry scheme run by a consortium of key tin producers. The iTSCi system is a result of international requirements for companies to apply ‘due diligence’ when sourcing minerals from conflicted areas (following OECD guidelines), and is designed to provide proof of the origin and trading route of minerals.37 It traces 3T minerals from pit to exportation at which point regional certification takes over.38 In putting plastic tags on the mineral bags, one at the level of the 33AllAfrica, Ghana: Gold, Guns and China-Ghana’s fight to end galamsey, 30 May 2017. Can be accessed at https://allafrica.com/stories/201706050394.html. 34Ibid. 35Ibid. 36Illegal gold fuelling gang battles in South Africa, by Nomisa Maseko, BBC News, can be accessed at https://www.bbc.co.uk/news/av/world-africa-34589143/the-illegal-gold-fuelling-gangbattles-in-south-africa, last visited on 14 February 2019. 37This requirement follows some transparency laws such as Section 1502 of the Dodd Frank Act. 38Vogel, C., Musamba, J., and Radley, B., 2017. A Miner’s Canary in Eastern Congo. Extractive Industries and Society, 5(1), pp. 73–80.

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mines and one prior to transporting them to regional trading houses, and matching the respective information on logbooks, iTSCi aim at establishing a closed pipeline supply chain. The iTSCi system presents in a way supplements the ASM formalization efforts.39

3.2 Environmental Impacts of Mining Environmental protection is one of the marked features of the twenty-first century, the rest being poverty eradication, addressing gender inequality, universal energy access and many others as stipulated in the UN Sustainable Development Goals (SDGs).40 With climate change discussions taking over global debates, we have seen an increase in measures to protect the environment at the national, regional and international level. Basically, mining activities are associated with adverse environmental challenges. For instance, in ASM there is use of dangerous chemicals such as mercury and cyanide. With respect to AGM, it is estimated that 1400 tonnes of mercury is released into the environment from AGM. The use of chemicals and the dust from quarries also lead to air and water pollution. Deforestation and destruction of wildlife is another environmental concern for ASM as many operations take place around or in forests. Moreover, social concerns including misplacement of people and loss of cultural heritages due to relocations cannot be ignored. There have also been issues related to soil erosion especially in gold and sand mining. At the national level, there are various legislations aimed at protecting the environment, though the implementation of these laws is lacking in some countries. For instance, section 80 of the 1999 Malian Mining Code requires mining companies to have environmental impact study before the issuance of a mining licence. Whereas there are various environmental concerns in the mining sector, in this chapter the focus is

39Ibid. 40See,

UN Sustainable Development Goals.

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on the environmental impacts of sand mining but prior to that, a brief overview of climate change and its relation to the mining sector will be discussed.

3.2.1 Nexus Between Environment, Climate Change and Mining Activities 3.2.1.1 Understanding Climate Change Typically, climate change in simple terms can be understood to mean a change in the usual weather found in a place. According to the Oxford Dictionary, ‘climate change is a change in global or regional climate patterns, in particular a change apparent from the mid to late twentieth century onwards and attributed largely to the increased levels of atmospheric carbon dioxide produced by the use of fossil fuels’.41 This definition indeed brings into play the role of human activities and their contribution to climate change. The Intergovernmental Panel on Climate Change (IPCC), on the other hand, defines climate change as the state of climate that can be identified by changes in the mean and/or the variability by its properties and that persists for an extended period, typically decades or longer.42 These changes affect the general environment and this in turn not only affects humans but also other species. It has been recognized that one of the most important challenges is the anticipation of the future under climate change; and indeed the concept has attracted a lot of attention in recent years from different experts and researchers of various backgrounds including scientists, oceanographers, ecologists, economists and policy analysts.43 The need to make climate change an important challenge in the current global, regional and national affairs was summarized by McNutt as follows: 41See, Oxford Online Dictionary, https://en.oxforddictionaries.com/definition/climate_change, last accessed on 22 November 2018. 42The International Panel on Climate Change (IPCC) 2007 43Nalule, V.R., 2018. Energy Poverty and Access Challenges in Sub-Saharan Africa: The Role of Regionalism. Springer.

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The natural systems that provide oxygen, clean water, food, storm and erosion protection, natural products and the potential for future resources such as new genetic stocks for cultivating, must be protected, not because it is part of good stewardship but also so that they can take care of us.44

The above statement clearly summarizes the reason why climate change has become an important topic in recent years, as the failure to take good care of the natural systems has direct negative consequences to not only humans but also nature at large.45 In the next section, climate change impacts in Africa will be explored.

3.2.1.2 Climate Change Impacts in Africa Different parts of the globe have been experiencing the negative impacts associated with climate change including more frequent wildfires, longer periods of drought, and an increase in the number, duration, and intensity of tropical storms. These effects though tough on developing countries, have also been experienced in the developed world.46 For instance, the Southern and Central Europe are seeing more frequent heat waves, forest fires, and droughts, while the Mediterranean area is becoming drier and Northern Europe is getting significantly wetter, making it vulnerable to winter floods.47 With respect to SSA, it is worth pointing out the general characteristics of the African climate, which is shaped by the inter-tropical convergence zone, seasonal monsoons in East and West Africa, and the EI Niño/ La Nina Southern Oscillation (ENSO) in the South. The ENSO and the seasonal Monsoons influence temperatures and precipitation across the continent including extreme events in metrological droughts.48 44McNutt,

M., 2013. Climate Change Impacts. Science, 341(6145), p. 435. V.R., 2018. Energy Poverty and Access Challenges in Sub-Saharan Africa: The Role of Regionalism. Springer. 46Ibid. 47European Commission: Climate Action, https://ec.europa.eu/clima/change/consequences_en, last visited on 8 May 2017. 48For a full discussion see Henderson, J.V., Storeygard, A., and Deichmann, U., 2017. Has Climate Change Driven Urbanization in Africa? Journal of Development Economics, 124, pp. 60–82. 45Nalule,

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Africa is the most vulnerable continent to climate change impacts, as it is expected to severely disrupt water and food systems, public health, and agricultural livelihoods not to mention causing enhanced droughts, sea-level rise, and changes in the incidence and prevalence of vector-borne disease.49 These projected changes are expected to exacerbate already high levels of food and water insecurity, poverty, and poor health and undermine economic development.50 In addition, climate change impacts to the agricultural sector are likely to drive rapid urbanization in Africa, as people will be pushed from rural areas to urban areas due to the deteriorating agricultural productivity caused by climate change. There is a general view that Africa has witnessed warming over land consistent with anthropogenic climate change. This has indeed had enormous effects on the continent, and it is predicted that these consequences will exacerbate both the economic and social situation on the continent in various ways such as affecting ecosystems, amplifying existing stress on water availability, worsening the existing health vulnerability, including insufficient access to safe water and improved sanitation.51 Taking the example of the Southern African region, the effects of climate change in the form of frequency of extreme weather events such as droughts and floods are not only evident in sectors such as agriculture and fishery but also present in the energy sector. This has therefore made it crucial for the region to ensure the deployment of 49Nalule, V.R., 2018. Energy Poverty and Access Challenges in Sub-Saharan Africa: The Role of Regionalism. Springer. 50Adenle, A.A., Ford, J.D., Morton, J., Twomlow, S., Alverson, K., Cattaneo, A., Cervigni, R., Kurukulasuriya, P., Huq, S., Helfgott, A., and Ebinger, J.O., 2017. Managing Climate Change Risks in Africa—A Global Perspective. Ecological Economics, 141, pp. 190–201. 51Nalule, V.R., 2018. Energy Poverty and Access Challenges in Sub-Saharan Africa: The Role of Regionalism. Springer; Niang, I., Ruppel, O.C., Abdrabo, M.A., Essel, A., Lennard, C., Padgham, J., and Urquhart, P., 2014. Africa. In Climate Change 2014: Impacts, Adaptation, and Vulnerability. Part B: Regional Aspects. Contribution of Working Group II to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change [Barros, V.R., Field, C.B., Dokken, D.J., Mastrandrea, M.D., Mach, K.J., Bilir, T.E., Chatterjee, M., Ebi, K.L., Estrada, Y.O., Genova, R.C., Girma, B., Kissel, E.S., Levy, A.N., MacCracken, S., Mastrandrea, P.R., and White, L.L., (eds.)]. Cambridge, UK and New York: Cambridge University Press, pp. 1199–1265. Can be accessed at, http://www.ipcc.ch/pdf/assessment-report/ar5/wg2/ WGIIAR5-Chap22_FINAL.pdf.

3  Social and Environmental Impacts of Mining     71

climate-resilient energy assets. A case in point is the El Niño climate event in Southern Africa, which has left an approximate of 21.3 million people in the region requiring emergency assistance due to the drought it has caused since 2015. Basically, El Niño is a naturally occurring phenomenon that involves fluctuations of sea surface temperatures and winds across the equatorial Pacific Ocean. Historically, it raises chances of receiving below average rainfall during the main crop growing season in Southern Africa.52 This El Niño has deteriorated various sectors such as agriculture, food security, livestock, nutrition and water, and sanitation and hygiene conditions in countries such as Lesotho, Madagascar, Malawi, Mozambique, Swaziland, Zambia and Zimbabwe.53 In the Eastern Africa region, the impacts of climate change have also been evident in countries such as Kenya, South Sudan and Uganda, which have been hit with a major drought thus leading to famine in various parts of these countries.54 Reflecting on the discussion above, it goes without saying that Africa will experience diverse and severe impacts of climate change, making adaptation essential in these countries. Adaptation refers to the efforts across scales to build resilience and reduce vulnerability to the impacts of climate change. However, this faces many constraints in different African countries including among others insufficient climate data; limited engagement of adaptation responses to national planning processes and local expertise; failure to make adaptation responses broad to not only cover climate change but also climate variability and broader development issues and insufficient adaptation finances. Additionally, there are other challenges facing adaptation in Africa including technical, political, institutional, economic and social dimensions. For instance, regarding the technical challenges, it is hard to develop better projections of climate change in African countries (although this is important

52See,

FEWS NET: Southern Africa Special Report, 2014/15 EL Niño Event, July 2014. Southern Africa Drought, Fact Sheet, January 2017. It can be accessed at https://scms. usaid.gov/sites/default/files/documents/1866/southern_africa_dr_fs04_01-30-2017.pdf, last visited on 8 May 2017. 54Nalule, V.R., 2018. Energy Poverty and Access Challenges in Sub-Saharan Africa: The Role of Regionalism. Springer. 53USAID,

72     V. R. Nalule

for adaptation) and this is due to a lack of historical information on weather and climate. Extraction of fossil fuels and coal (coal can fall under minerals) have adverse effects on the environment and as such contribute to climate change. Besides the extraction of coal, the nexus between climate change and mining activities can also be understood by reviewing the negative impacts of the mining sector on the environment. For instance, the pollution caused in industrial stone quarrying; use of mercury in ASM; deforestation just to mention but a few. In the next section, a brief examination of the effects of mining activities specifically sand mining will be explored.

3.2.2 Environmental Impacts of Sand Mining Sand mining is one of the topical issues of the twenty-first century. Basically, sand mining involves the removal of sand and gravel. This may involve the extraction of sand through an open pit, or it can also be dredged from ocean and river beds or mined from beaches and inland dunes. The activity not only has a role in ensuring the achievement of goal 8 of the SDG regarding economic growth, but it is also essential in the achievement of goals 9 and 11 of SDGs relating to infrastructure and sustainable cities and communities, respectively. Sand is one of the most mined and demanded material in the twenty-first century. Estimates indicate that sand and gravel make up the most extracted group of materials, even exceeding fossil fuels.55 It has also been highlighted that around 32–50 billion tonnes of sand are used globally each year, which exceeds the pace of natural renewal56: this has caused some concerns that by mid-century, demand might outstrip

55Bendixen, M., Best, J., Hackney, C., and Iversen, L.L., 2019. Time Is Running Out for Sand, Nature International Journal of Science; Torres, A., Brandt, J., Lear, K., and Liu, J., 2017. A Looming Tragedy of the Sand Commons. Science, 357, 970–971. 56Bendixen, M., Best, J., Hackney, C., and Iversen, L.L., 2019. Time Is Running Out for Sand, Nature International Journal of Science.

3  Social and Environmental Impacts of Mining     73

supply.57 Additionally, some countries have a high demand for sand. For instance, China has used more concrete in the past few years than the United States used in the entire twentieth century. Sand is the main ingredient of concrete, plaster and asphalt paving, which are used in the construction industry. Goal 11 of the SDGs advocates for sustainable cities and communities; the construction of these cities and various infrastructure will require enormous amounts of sand.58 There is a connection between goal 11 and urbanization and as such this will significantly contribute to the demand for sand. The global boom in urbanization is projected to increase, as almost 2 billion people are likely to live in urban centres by 2040 and Africa is projected to contribute one-third of this increase in urbanization.59 Moreover, productivity levels are also expected to increase and it is estimated that 2.5 billion people will be lifted from low incomes.60 Additionally, the demand for sand is escalated by the population growth especially in China, India and Africa. Wood Mackenzie report indicates that global population is expected to increase by 1.5 billion by 2040.61 However, according to the BP report, population growth is estimated to increase by around 1.7 billion to reach nearly 9.2 billion people in 2040.62 The booming urbanization and population growth will definitely increase the demand for sand especially in the construction industry as more buildings, cities, roads and other infrastructure will have to be set up. Besides being used in the construction industry, sand is also essential in the protection of the environment as it buffers against strong tidal waves and storm. Additionally, sand is used in the making of glasses, used in beaches and it is also a habitat for crustacean species and marine 57Ibid. 58Goal

11 of the 2015 UN Sustainable Development Goals (SDGs). Energy Outlook, 2018, https://www.bp.com/content/dam/bp/en/corporate/pdf/energyeconomics/energy-outlook/bp-energy-outlook-2018.pdf, Energy Outlook, last accessed on 28 August 2019. 60Ibid. 61See, Wood Mackenzie Energy Transition Outlook: The Scalability Challenge, 2019. 62BP Energy Outlook, 2018, https://www.bp.com/content/dam/bp/en/corporate/pdf/energyeconomics/energy-outlook/bp-energy-outlook-2018.pdf, Energy Outlook, last accessed on 28 August 2019. 59BP

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organisms.63 Sand is also used in reclamation as topsoil in abandoned mines (post-mining land reclamation).64 Despite reports indicating that the world is running out of sand, not much has been done in SSA countries to preserve this resource, and paradoxically some people who stay in areas endowed with sand are not aware of the importance of this resource. Most of the communities are not well developed.65 This can be attributed to the fact that the local people who are involved in the extraction of sand on a small scale use hand tools, and as such they cannot benefit as much as the Chinese and other foreign companies who use excavators and other machineries, which definitely require enormous amounts of energy such as diesel and petrol to operate.66 Consequently, scholars have highlighted the nexus between access to modern energy, sand mining and urbanization.67

3.2.2.1 Analysis of Sand Mining Impacts on the Environment • Effects on rivers and wetlands Most of the sand is extracted from rivers and this not only has an effect on the ecology and livelihood of the people who live along rivers but also on the nearby infrastructure. Excessive sand mining leads to the collapse of river banks. With respect to wetlands, Uganda’s Lwera wetland has experienced the negative environmental impacts associated with sand mining. Basically, the wetland is a catchment area for several rivers that flow into Lake Victoria. Due to lack of monitoring and implementation of environmental laws, most sand mining companies in Uganda were scooping 63Saviour, M.N., and Stalin, P., 2012. Soil and Sand Mining: Causes, Consequences and Management. IOSR Journal of Pharmacy (IOSRPHR), 2(4), pp. 1–6. 64Ibid. 65See field video by the author interviewing local communities where sand is located. Victoria Nalule, Sand Mining in Africa. https://www.youtube.com/watch?v=TfEU7w7GoZ0&t=70s. 66Nalule, V.R., 2018. Energy Poverty and Access Challenges in Sub-Saharan Africa: The Role of Regionalism. Springer. 67Ibid.

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sand from the wetland 12 metres underneath instead of the recommended 3 metres. The wetland runs along a highway linking Kampala to Masaka, but this was also at the risk of being damaged since mining companies failed to comply with the requirement of not dredging sand 200 metres towards the highway. Nevertheless, the Government in a bid to regulate and legalize the activity, recently granted licences to mining companies operating in Lwera.68 Due to the environmental impacts associated with sand mining, several activists and NGOs have actively participated in the protection of wetlands and rivers. For instance, in Uganda, an environmental body by the name of Advocates for Natural Resources Development, in an effort to stop sand mining in the Lwera wetland and to ensure that mining companies comply with their licences, sued four sand mining companies including: Capital Estates, Seroma, Zhongs Industries and Mango Tree Group.69 Environmental impacts of sand mining have also been experienced in Asia. For instance, in China, sand mining on the Pearl River besides damaging bridges, it also lowered water tables and made it harder to extract drinking water.70 In the Mekong delta of Vietnam, it is estimated that nearly 500,000 people will need to be moved away from river banks that are collapsing as a result of sand mining in the channel. Additionally, these eroded river banks have destroyed the nesting and breeding habitats of fish-eating gharial crocodiles in the Ganges River in northern India.71 Moving forward, we note that there are various challenges associated with sand mining. Firstly, most African countries lack proper legislation regulating the sector; there is also lack of adequate data as most sand

68Daily

Monitor, Minister Kitutu Okays Sand Mining, Rice growing in Lwera. 17 May 2019. Can be accessed at, https://www.monitor.co.ug/News/National/Minister-Kitutu-okays-sand-miningrice-growing-Lwera/688334-5118824-12y9y24/index.html, last visited on 1 September 2019. 69Daily Monitor, Environment Agency sues Sand Mining Firms. 6 February 2019. Can be accessed at https://www.monitor.co.ug/News/National/Environment-agency-sues-sand-mining-firms-SeromaZhongs-/688334-4968648-vpgh5n/index.html, last visited on 1 September 2019. 70Bendixen, M., Best, J., Hackney, C., and Iversen, L.L., 2019. Time Is Running Out for Sand, Nature International Journal of Science. 71Ibid.

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mining activities are undocumented; illegal sand mining has also contributed to an increase in crime and violence; corruption on the part of governmental officials who ignore the non-compliance of mining permits by companies; lack of finances on the part of environmental agencies and as such they fail to monitor the activity and lack of policies supporting responsible sand mining.

3.3 Environmental Protection Initiatives in the Mining Sector Given the adverse negative effects of mining, there is a need to ensure the protection of the environment and the local communities where these resources are extracted from. Indeed, various legislations provide for the protection of the environment, be it at national, regional or international level. There are also other initiatives and technological advancements aimed at protecting the environment as highlighted below. • Voluntary initiatives Besides the compulsory legal provisions, we note the voluntary initiatives dedicated to protecting the environment. A case in point is the International Cyanide Management Code (ICMC) which is a voluntary initiative aimed to promote responsible management of cyanide used in gold mining with the main aim of protecting the environment and promoting human health. To ensure compliance, companies that become signatories to the Code are required to have their operations audited by an independent third party to demonstrate their compliance with the Code. In March 2007, the Code had 27 signatory companies representing 88 individual facilities and about 36% of the world’s production of gold by cyanidation. This number has since increased demonstrating the interest of various companies, thus, as of 1 January 2018, the Code had 195 signatories and 269 certified operations.72

72International

Cyanide Management Code, https://www.cyanidecode.org, last accessed on 1 September 2019.

3  Social and Environmental Impacts of Mining     77

• Resource efficiency and material efficiency Resource efficiency basically means using the Earth’s limited resources in a sustainable manner while minimizing impacts on the environment. Minerals are non-renewable thus necessitating efficient usage of raw materials. Consequently, less raw material input contributes in reducing the environmental negative impacts of mining. There is also an aspect of material efficiency which basically refers to the manufacturing of products with fewer materials thus leading to less consumption of raw materials. Technological advancements and more research are required if countries are to fully benefit from resource efficiency and material efficiency. We note that air traffic is one of the most carbon dioxide emitters and this has resulted in efforts to make airplanes more energy efficient and less polluting. Consequently, material efficiency has been applied in airplanes to reduce the energy intake. This has therefore necessitated innovations for materials that have the effect of making the airplanes lighter and as such less weight results to not only more efficient airplane engines but also less energy input—thus less consumption of kerosene and less carbon dioxide emission. An example of the airbus A380 is given as a modern airplane which contains relatively little steel.73 • Recycling Recycling especially for metal has the advantage of ensuring energy efficiency. Indeed, recycling from secondary resources is recognized as an addition to using primary raw material resources. The use of secondary raw materials such as scrap for metals is more energy efficient compared to primary raw materials. It has been observed that only 5% of electricity can be used in the secondary smelting of aluminium using scrap as compared to primary smelting. Metal recycling is evident with the example of a car which is believed that 80% of the metals in the car can be reused especially the non-ferrous metals.74

73Gunter Tier, 74Ibid.

General and International Mineral Policy. Focus: Europe, p. 35.

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3.3.1 Decommissioning and Mine Closure Decommissioning a mine site involves a process where the site’s infrastructure and plant including processing facilities and equipment are safely demolished. The process also requires the cleaning of the area, draining of pipelines and disposing of any waste. The aim of decommissioning and closure is to ensure that the mine site is at an acceptable standard of productive use. Due to the finite nature of the extractive industry, companies must prepare for mine closures at the end of the life pan of mining operations or upon abandonment or renunciation of mining rights. Often, mining companies before they are granted licences must share their mining closure plans. However, in some cases, the closure may happen unexpectedly due to lack of financial support; market fluctuations; political climate and many other issues. Besides mining planning, there is also closure planning which continues through the life of a mine, starting with conceptual closure plans prior to production, periodic updates throughout the life of the mine and final decommissioning plan. Some of the common ways of mine closure include: capping of mine shafts which involves placing a large concrete plug around the shaft to cover it. The plug can be a metallic grill though in some remote areas where ASM is carried out, these can also be in the form of wooden beams.

3.3.1.1 What to Consider in the Mining Closure Plan? The closure of a mine will affect the societies that have grown to heavily depend on the mining activities. In this respect, various considerations must be addressed in a mining closure plan. Some of the key considerations are highlighted below especially with respect to the social transition of the society concerned: • What other activities should the miners be involved in? Do they have the necessary skills or financial requirements? This will require stakeholder consultations during the design of the closure plan. The consultations should however give an opportunity to all people to be

3  Social and Environmental Impacts of Mining     79

represented including indigenous people, representatives of the miners, the women and the youth. Such consultations are necessary to estimate the cost of the social transition, this indeed differs depending on the communities concerned and based on the environmental and economic impact the mine has had. • Financial issues. The mining company must prove that it has the necessary money and finances required to ensure a successful mining closure. Prior to the granting of mining licences, financial assurance from mining companies is mostly requested by African governments. This may take a form creating a rehabilitation fund; security deposit or payment of a provision by a mining company. Financial assurances can be provided through among others: irrevocable letters of credit; trust funds; corporate guarantees and cash deposits. • There is also a need to include a schedule for post-closure monitoring. This is essential to ensure that environmental and social conditions have been adhered to including ensuring good quality of the groundwater, physical site and surface water.

3.3.2 Mine Rehabilitation Mine rehabilitation is the process where the post-mined landscape is restored to enable the use of land for other activities. Rehabilitation works consist of reforestation, removal of all installations and ensuring the safety of perimeters. Whereas it is the duty of the mining company to establish and present a mine rehabilitation plan and finance the process; on the other hand, it is the duty of the State to supervise and ensure that the company complies with the plan. Various mining legislations have provisions that require companies to enforce rehabilitation plans. Many mining communities in countries such as Tanzania and South Africa have been faced with fatal accidents, health and safety issues and environmental degradation resulting from the unclosed mines. Additionally, local communities are mostly dependent on agriculture and run the risk of not reusing the land after the mine cycle if the open mine is left unattended. All these have necessitated the rehabilitation provisions in mining laws.

80     V. R. Nalule Table 3.3  Rehabilitation legal provisions Country

Legal provisions

Central African Republic Ghana Uganda

Section 104 of Law No. 09-005 of 29 April 2009 Enacting the Mining Code Section 28 of the Minerals and Mining Act, 2006 Section 66 of the Mining Regulation, 2004 and Section 110 of the Mining Act, 2003 Section 127 of the Mines and Minerals Act, 2011

Swaziland

Basically, provisions for rehabilitation and mine closures have their basis from national constitutions and other international instruments such as the Basel Convention. Table 3.3 gives some of the rehabilitation provisions in different African countries.

References Laws and International Instruments The International Labor Organisation Convention, 169. The United Nations Convention on the Rights of the Child, 1989. The International Labour Organisation Minimum Age Convention, 1973 (No. 138). The Worst Forms of Child Labour Convention, 1999 (No. 182). Convention Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour (Worst Forms of Child Labour Convention, 1999 [No. 182]). Resolution Concerning Statistics on Child Labor, Adopted by the 18th ICLS in 2008. Law No. 2012-015 of 27 February 2012 Enacting the Mining Code, Laws of Mali. Law No. 007-2002 of 11 July 2002 Enacting the Mining Code. Democratic Republic of Congo. Law No. 13-2014 of 20 May 2014 On the Exploitation of Mines and Quarries, Laws of Rwanda. The 2006 Occupational Safety and Health Act, Laws of Uganda. The 2007 Occupational Safety and Health Act, Laws of Kenya.

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Books, Articles and Other Sources BP Energy Outlook, 2019. Bendixen, M., Best, J., Hackney, C., and Iversen, L.L., 2019. Time Is Running Out for Sand, Nature International Journal of Science. Dammert, A.C., de Hoop, J., Mvukiyehe, E., and Rosati, F.C., 2018. Effects of public policy on child labor: Current knowledge, gaps, and implications for program design. World Development, 110, pp. 104–123. Del Rey, E., Jimenez-Martin, S., and Castello, J.V., 2018. Improving educational and labor outcomes through child labor regulation. Economics of Education Review, 66, pp. 51–66. Ghouth, A.S.B., Taleb, M.A.B., Hadi, A.A., Algarzi, M.M., Bahartah, A.A., Taleb, E.H.B., Ba-dokhon, K.A., Alsayari, M.M., Khader, M.M., Nasser, K.M., and Baju, S.A., 2018. Prevalence of Child Labor among Elementary School Students from 5th to 9th Grade in al Mukalla. Global Journal of Human-Social Science Research. Hilson, G., and Maconachie, R., 2017. Formalising artisanal and small-scale mining: Insights, contestations and clarifications. Area, 49(4), pp. 443–451. Menon, N., and van der Meulen Rodgers, Y., 2018. Child labor and the minimum wage: Evidence from India. Journal of Comparative Economics, 46(2), pp. 480–494. McNutt, M., 2013. Climate change impacts. Science (New York, NY), 341(6145), p. 435. Nalule, V.R., 2018. Energy Poverty and Access Challenges in Sub-Saharan Africa: The role of regionalism. Springer. Saviour, M.N., and Stalin, P., 2012. Soil and Sand Mining: Causes, Consequences and Management. IOSR Journal of Pharmacy (IOSRPHR), 2(4), pp. 1–6. Tiess, G., 2011. General and International Mineral Policy: Focus: Europe. New York: Springer Wien. Vogel, C., Musamba, J., and Radley, B., 2017. A Miner’s Canary in Eastern Congo. Extractive Industries and Society, 5(1), pp. 73–80. Veiga, M.M., Angeloci-Santos, G., and Meech, J.A., 2014. Review of barriers to reduce mercury use in artisanal gold mining. The Extractive Industries and Society, 1(2), pp. 351–361. Wood Mackenzie Energy Transition Outlook: The Scalability Challenge, 2019.

4 Concluding Remarks: Key Issues in African Mining and Recommendations

Abstract  In this book, the focus has been on the regulation of the mining sector together with the social and environmental impacts of mining in Africa. Nevertheless, we note that there some key issues that are of interest to the African mining sector including local content and corporate social responsibility (CSR). Prior to giving the concluding remarks and recommendations, this section will briefly highlight key issues in local content and CSR in Africa. Keywords  Land access and mining · Local content in mining Corporate social responsibility in mining

·

In this book, the focus has been on the regulation of the mining sector together with the social and environmental impacts of mining in Africa. Nevertheless, we note that there some key issues that are of interest to the African mining sector including local content and corporate social responsibility (CSR). Prior to giving the concluding remarks and ­recommendations, this section will briefly highlight key issues in local ­content and CSR in Africa. © The Author(s) 2020 V. R. Nalule, Mining and the Law in Africa, https://doi.org/10.1007/978-3-030-33008-8_4

83

84     V. R. Nalule

4.1 Local Content in the Mining Sector Briefly Discussed Local content has been an issue of focal discussion in many African countries. In the extractive industry, local content entails the use of local workforce and local facilities in the oil, gas and mining industry. This in effect entails the employment of local personnel and locally manufactured goods and equipment by mining companies operating in a specified country. The mining sector especially large-scale mining requires massive capital which is in most cases beyond the reach of the local people, in this respect the sector mostly attracts foreign investors, who in the distant past would come with their personnel and other services providers while carrying out mining activities in Africa. Local content therefore is a way to rectify the previous imbalances caused by over-reliance on foreign capital, services and workforce in the mining industry. To this effect, local content provisions put an obligation on the mining companies to give preferences to local service providers, workers and companies—all of which have an effect of enhancing the local economy. Local service providers include companies involved in the supply, construction and procurement of contracts. Enforcement of local content requirements necessitates the backing of national laws and regulations. In this respect, some countries such as Uganda have gone ahead to draft independent local content Acts while other countries have included local content provisions in their respective mining laws thus putting an obligation on mining companies to utilize local service providers. Table 4.1 gives some examples of local content provisions in various mining legislations. Table 4.1  Local content legal provisions Locally produced goods and services Local service providers Section 12(1) of the Mines and Minerals Act of Botswana Section 113(1) of the 2003 Mining Act of Uganda Article 101 of Law No. 4-2005 of 11 April 2005 Enacting the Mining Code of the Republic of Congo

Article 12(1) of the Mines and Minerals Act of Botswana Article 50 of the 1992 Mineral Prospecting and Mining Act of Namibia Article 29 of the 2011 Mines and Mineral Act of Swaziland

4  Concluding Remarks: Key Issues in African …     85

4.1.1 Enforceability of Local Content Provisions It is not enough to have good and impressive local content laws on paper, there is a need to ensure the enforcement of such laws. Indeed, the laws have put in place some procedures to ensure that local content aspects are practised including favouring tax regimes; tenders and procurement proceeding favouring local people; encouragement to join operations between foreign and local companies just to mention but a few.1 Some countries such as Ghana have set up local content enforcing units, other countries on the other hand have introduced detailed criteria to determine when and how local companies can be involved in the sector. In Guinea for instance, the law under Article 107 provides in detail how small- and medium-sized enterprises owned or controlled by Guineans can be involved in the various stages of the mining project in the country.2 Enforceability also necessitates the need to ensure that the local people have the necessary skills to take up such entrepreneurship businesses. In this respect, the mining laws of Namibia under Article 50 provides for the enhancement of local entrepreneurship in the mining sector.3 In an endeavour to ensure that host countries meet the requirements of qualified personnel, different African governments have sent many of their officials in different developed countries to acquire the necessary knowledge and expertise in the mining sector. Additionally, local universities now do offer energy and mining courses and as such the issue of lack of qualified personnel is no longer valid in many African countries. Indeed, African countries are now making bold demands to ensure that qualified nationals are well represented in managerial and senior roles in the mining companies. A case in point is that of Guinea, where the law expressly requires the assistant general manager to be a Guinean and the managing director of the mining company

1This

is the case in Mozambique as stipulated under Article 22 of Mining Act No. 20-2014 of 18 August 2014. 2Article 107 of Law No. 2011/006/CNT of 9 September 2011 Enacting the Mining Code. 3Article 50 of the 1992 Minerals Prospecting and Mining Act, Laws of Namibia.

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to also be a Guinean (after the lapse of a specified period of time).4 Additionally, enforceability necessitates clear monitoring programmes and redress in the event the mining companies fail to comply. In this respect, in Guinea companies are required to provide reports on the employment of local personnel as stipulated under Section 108 of the Mining Code.5

4.2 Brief on Corporate Social Responsibility in the Mining Sector CSR refers to a business approach that contributes to sustainable development by delivering economic, social and environmental benefits for all stakeholders. For companies, the overall aim is to achieve a positive impact on society while maximizing the creation of shared values for the owners of business, its employees, shareholders and stakeholders. When social responsibility is recognized as part of a company’s business model, it can attract positive publicity, help attract and retain top talent, and improve relationships with customers and their communities. The benefits can be far and wide, including client retention, improved sales and financial success. There are four types of CSR that have been exercised by companies over the years and these include: environmental sustainability initiatives; direct philanthropic giving; ethical business practices and economic responsibility. Given the negative impacts associated with the mining industry including environmental degradation, pollution, child labour, violence just to mention but a few—mining companies are embracing CSR as a way of addressing some of these impacts. Indeed, CSR by its nature is supposed to be voluntary and as such mining contracts and mining legislations do not expressly provide for these. However, given the hostilities from various local communities, it

4Article

108 of Law No. L/2013/N°053/CNT of 8 April 2013 Amending the Mining Code. 108 of Law No. L/2013/N°053/CNT of 8 April 2013 Amending Law No. 2011/006/ CNT of 9 September 2011 Enacting the Mining Code. 5Article

4  Concluding Remarks: Key Issues in African …     87

has become imperative for mining companies to improve their image by enhancing CSR. Nevertheless, there are now legal provisions for CSR. These are visible at both the national and regional level. Nationally, countries such as South Sudan make it mandatory for mining companies to implement CSR programmes.6 Mozambique on the other hand also has provisions on CSR as stipulated in Order No. 21/2014.7 Regionally, ECOWAS requires all member states to ensure that CSR is part of the conditions for granting a mining licence.8 We also note that unlike in the past where companies concerned themselves with small projects as part of their CSR, in recent years, given the economic challenges in most African countries, there have been suggestions to redefine CSR to include developmental infrastructure such as roads, schools and hospitals.

4.3 Land Access and Mining Issues relating to land access and extractives have gained a lot of attention in recent years. These are sensitive issues which have in some cases resulted in violence and death. For instance, in July 2019, a local leader was killed in Brazil by gold miners who invaded a remote indigenous reserve in northern Brazil.9 In this section, the nexus between land access and mining will be briefly highlighted.

4.3.1 Understanding Land Discussions on land issues require us to have a proper understanding of what land entails. It is not the mere solid portion of the earth’s surface but rather it comprises the portion of the land on the surface of the 6Section 128(2)

of the 2012 Mining Act. No. 21/2014 of 16 May 2014. 8See Article 11(2) of ECOWAS Directive C/DIR 3/05/09 of 27 May 2009 On the Harmonisation of the Guiding Principles and Policies in the Mining Sector. 9For a full story see, BBC: Brazil’s indigenous people miners kill one in invasion of protected reserve, can be accessed at 28 July 2019, https://www.bbc.co.uk/news/world-latin-america-49144917. 7Order

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earth, the portion of the earth below the surface and the space above, including all easements and appurtenances to the land or reputed to be part of or appurtenant to it. Common law definition of land also agrees with the above definition, which is summed up in the Latin maxim: “quic quid plantatur solo, solo cedit”, literally translated to mean that everything that attaches to the land goes with it. We note that, land and its administration differs depending on the jurisdiction and cultures concerned. However, historically land in Africa was customarily held and as such it was communal land. The spirit behind communal and customary ownership of land lies in the understanding that land has been inherited from the past generation and therefore it has to be preserved for the present and future generations, in this respect customarily, land is managed, controlled and administered in trust for the present and future generation. Today, following the colonization of Africa and with the introduction of different laws and regulations governing the land system, land is owned in different categories and it is understood differently depending on the location, culture, values and norms of the community concerned. Important to note is that ownership of land is key in determining who owns the legal rights and title of such land. In some countries, citizens have a right to own land while in other jurisdictions, the ownership of land is vested in the State. In Uganda for instance, the ultimate ownership of land is vested in the country’s citizens. In this respect, the Supreme law of the land which is the Constitution under Article 237(1) and (3) vests the ownership of land in the citizens of Uganda. The Article further outlines the different tenure systems under which the land can be held. These include: customary; freehold; mail and leasehold.10

4.3.2 Land Access and Mining The owner of the land is entitled to compensation if mining activities are to be carried out on his/her land. The reasoning behind 10The

Constitution of Uganda, 1995, as amended.

4  Concluding Remarks: Key Issues in African …     89

compensation is based on the fact that a mining title does not per se extinguish the rights of the landowner, rather it grants the owner of a mining licence a right to exploit the natural resources present in the subsoil which definitely requires access to the surface. All the rights of the holder of a mining title are subject to the lawful rights of the landowner and lawful occupant. It is also necessary for the holder of a mining licence to have legal easements of access and passage necessary for its installations or the conduct of mining operations, this is the situation in Algeria as stipulated in Section 140 of the Mining Law.11 Indeed, the holder of a mining licence has to abide by the national laws and regulations relating to land ownership and governance. In some countries such as Botswana, the holder of mining licence has to provide the landowner with proof of the mining rights. In this respect, Section 60 (2) of the Mines and Minerals Act provides that, ‘person exercising any right under a mineral concession shall produce evidence of the possession of such concession to the owner or lawful occupier of any land upon which such right is to be exercised upon demand being made to him and, in default of such production, such person may be treated as a trespasser’.12 Additionally, an agreement between the holder of a mining right and the landowners is necessary and express consent is also required, this is a requirement in different African countries such as Mali.13 This agreement may take a form of a land lease or lease agreement, which in effect entitles the landowner to receive compensation in the form of rent. Nevertheless, we note that in some countries such as Uganda the minerals are held by the government on behalf of the people, in this respect, the State will intervene to ensure that the landowners are fully compensated. If no agreement can be reached then the State may move to expropriate the land for mining purposes, in which case the landowner will still be entitled to compensation. 11Article

140 of Law No. 01-10 of 3 July 2001 Enacting the Mining Law, Algeria. (2) of the Mines and Minerals Act, Laws of Botswana. See also Section 118 of the Mines and Mineral Act, 2011 of Swaziland. 13See, Section 73 of Law No. 2012-015 of 27 February 2012 Enacting the Mining Code, Laws of Mali. 12Section 60

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Considering the fact that most land where mining is carried out is located in rural areas with communities who depend on agriculture, farming and fishing, it becomes imperative to calculate such compensation taking into consideration of the livelihood of the local communities and how they will negatively be impacted if they can no longer have access to their land to carry out their daily activities. We however note that the issue of compensation has been a source of corruption as many government officials use the opportunity to connive with private landowners or businessmen to increase the value of the land. Compensation may also consider disruption caused to the landowner. In Uganda, Section 83 of the Mining Act, 2003 provides: ‘[t]he owner or lawful occupier of any land subject to a mining right is entitled to compensation under either Section 82 of this Act or to a share of royalties under Section 98 of this Act’. Further, Section 98 (1) describes how royalty shall be shared.14

4.4 Conclusion Both large-scale and ASM have the effect of positively and negatively affecting the African people where these activities are carried out from. The social and environmental effects of ASM were explored in Chapter 3. However, we have to note that although there are economic and social benefits of large-scale mining, the increased mechanization in the sector has resulted to the cutting of workers thus reducing on the employment opportunities. The cut down on employment has not only caused unemployment but also fueled violence. For instance, in November 2018, miners in South Africa struck and were also accused of arson at the Gold Fields-owned South Deep Mine in South Africa. This strike was organized by the National Union of Mineworkers (NUM) in response to Gold Fields’ plans to cut a further 1500 jobs at the mine after the loss of 1100 jobs in August. The strike not only affected the

14Laws

of Uganda.

4  Concluding Remarks: Key Issues in African …     91

workers but also the mining company as it led to a loss of around 2800 oz of gold, equivalent to R50 million.15 Besides unemployment, the various tax incentives provided to foreign mining companies and tax evasion by the same companies have also reduced the revenue from these activities. In recent years, African governments have been keen to increase revenue from the mining industry. In this respect countries such as Tanzania have not only introduced new legislations but also set up committees to investigate the taxing system for mining companies. For instance, in July 2017, Tanzanian authorities demanded Gold miner Acacia to pay $190 billion in unpaid taxes following the Committee findings that the firm was operating illegally and had understated its gold exports.16 Acacia Mining, a company majority owned by Barrick Gold (TSX, NYSE: ABX), owns and operates Tanzania’s three major mines—Bulyanhulu, Buzwagi and North Mara. In October 2018, some of the company’s staff members and former employees were detained by the country’s anti-corruption authority for money laundering and tax evasion. In the nutshell, it is evident that African countries have not effectively benefited from their mineral resources due to various factors including the unfavourable previous mining laws, political instability in some resource-rich countries, corruption and poor governance. As such there is a need to ensure: enaction or amendment of relevant laws with the effect of giving the States more powers in the mining sector; revise tax laws and reduce on tax incentives so that governments can get enough revenue from the mining sector; effectively formalize and legalize ASM; demand for more developmental infrastructure in the form of CSR; ensure the implementation and enforcement of local content provisions; ensure implementation of environmental laws; address issues concerning child labour and gender inequalities in the mining sector just to mention but a few. 15Mining

Technology: Gold Fields reports arson and violence at South Deep mine protests, November 2018, can be accessed at, https://www.mining-technology.com/mining-safety/goldfields-reports-arson-violence-south-deep-mine-protests, last visited on 14 February 2019. 16BBC News: Acacia Mining rejects $190bn Tanzanian tax bill, can be accessed at, https://www. bbc.co.uk/news/business-40714086, last visited on 14 February 2019.

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Answering the questions raised in this book, it is safe to say that unlike the previous mining laws of the 1980s and 1990s which basically aimed at profiting foreign companies; the current mining and taxation laws in Africa have the potential of ensuring that the local people benefit from their resources. However, it is not enough to have these laws on paper, there is a need to invest in monitoring and enforcement mechanisms in these countries. Also, there is a need to ensure that ASM is well regulated so that the local people can further benefit from their minerals. For countries that have not yet joined EITI, they should consider doing so to promote transparency and accountability in their countries.

References Laws The Constitution of Uganda, 1995 (as amended). Mines and Minerals Act 1999 (Cap. 66:01) (No. 17 of 1999), Laws of Botswana. The Mining Act, 2003 (No. 9 of 2003), Laws of Uganda. The 1992 Mineral Prospecting and Mining Act of Namibia. Law No. 4-2005 of 11 April 2005 Enacting the Mining Code of the Republic of Congo. The 2011 Mines and Mineral Act of Swaziland. Mining Act No. 20-2014 of 18 August 2014, Laws of Mozambique. ECOWAS Directive C/DIR 3/05/09 of 27 May 2009 on the Harmonisation of the Guiding Principles and Policies in the Mining Sector.

Books, Articles and Other Sources Cooke, J.A., and Johnson, M.S., 2002. Ecological restoration of land with particular reference to the mining of metals and industrial minerals: A review of theory and practice. Environmental Reviews, 10(1), pp. 41–71. Esteves, A.M., Coyne, B., and Moreno, A., 2013. Local content initiatives: Enhancing the subnational benefits of the oil, gas and mining sectors. Rev. Watch Inst.

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Hilson, G., 2002. An overview of land use conflicts in mining communities. Land Use Policy, 19(1), pp. 65–73. Jenkins, H., 2004. Corporate social responsibility and the mining industry: Conflicts and constructs. Corporate Social Responsibility and Environmental Management, 11(1), pp. 23–34. Jenkins, H., and Yakovleva, N., 2006. Corporate social responsibility in the mining industry: Exploring trends in social and environmental disclosure. Journal of Cleaner Production, 14(3–4), pp. 271–284. Kapelus, P., 2002. Mining, corporate social responsibility and the “community”: The case of Rio Tinto, Richards Bay Minerals and the Mbonambi. Journal of Business Ethics, 39(3), pp. 275–296 Lange, S., and Kinyondo, A., 2016. Resource nationalism and local content in Tanzania: Experiences from mining and consequences for the petroleum sector. The Extractive Industries and Society, 3(4), pp. 1095–1104. Schueler, V., Kuemmerle, T., and Schröder, H., 2011. Impacts of surface gold mining on land use systems in Western Ghana. Ambio, 40(5), pp. 528–539.

Index

A

Africa 4–6, 11, 13–16, 19, 21, 23, 24, 28, 33, 42, 45, 49, 55, 69–71, 73, 83, 84, 88, 92 African Mining Vision (AMV) 5, 16, 24, 49 aluminium 7, 9, 77 artisanal mining 3, 4, 12, 16, 21, 36, 52 B

Botswana 3, 13, 23, 84, 89 Burkina Faso 28, 42, 53

climate change 42, 67–72 copper 5, 7, 9–11, 13, 44, 56 corporate social responsibility (CSR) 3–5, 16, 44, 83, 86 E

economy 6, 9, 10, 34, 35, 40, 84 environmental impacts 16, 42, 44, 48, 51, 52, 54, 63, 68, 74, 75, 83 Ethiopia 28, 34, 53, 65 G

C

Central African Republic 53, 80 child labour 21, 51, 52, 54, 58–62, 86, 91

geological 9, 10, 47 Ghana 13, 33–39, 41, 42, 53, 57, 64–66, 80, 85

© The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2020 V. R. Nalule, Mining and the Law in Africa, https://doi.org/10.1007/978-3-030-33008-8

95

96     Index

gold 2, 5, 7, 13, 15, 34, 35, 39–41, 44, 53, 54, 56, 61, 63, 66, 67, 76, 87, 90, 91 Guinea 38, 53, 85, 86

N

natural resources 13–15, 25–33, 45, 56, 89 Niger 3, 53 Nigeria 28, 32, 53

H

Health and Safety 36, 61, 63–65, 79 human rights 22, 55, 57

P

I

R

iron 5, 7, 8, 11, 13, 14, 40

policy 3, 20–22, 24, 29, 49, 68

regionalism 4, 24, 49 Republic of Congo 65, 84 Resolution 626 29, 30

L

land access 3, 16, 87, 88 lead 5–7, 9, 10, 65, 67, 74 Lesotho 28, 71 limestone 5, 8, 34, 40 local content 3–5, 16, 22, 44, 83–85, 91 M

Malawi 3, 61, 65, 71 Mali 39–41, 52–54, 57, 64, 65, 89 mining 2–5, 9–16, 19–28, 32–49, 51–57, 59–68, 72, 75–80, 83–91 Mining in Africa 2, 5, 11, 14–16, 19, 37–41, 52, 74, 83 mining laws 16, 19, 20, 22, 24, 32–34, 36, 38, 40–42, 44, 45, 55, 65, 79, 84, 85, 89, 91, 92 Mining Regulation 36, 46, 80

S

sand mining 22, 51, 52, 67, 68, 72, 74–76 Sierra Leone 53 social impacts 66 South Africa 3, 14, 39, 42, 53, 66, 79, 90 South Sudan 53, 57, 58, 71, 87 State land system 26–28 Sudan 28 sustainable 4, 24, 72, 73, 77, 86 Swaziland 11, 71, 80, 84, 89 T

Tanzania 16, 23, 24, 28, 39, 42–44, 53, 61, 79, 91 The Democratic Republic of Congo (DRC) 3, 52, 53, 56–58, 61, 62, 65

Index     97

tin 5, 7, 9, 56, 57, 61, 66

V

violence 51, 65, 66, 76, 86, 87, 90

U

Uganda 20–22, 24–26, 42, 45–47, 52, 53, 57, 61, 63–65, 71, 74, 75, 80, 84, 88–90 Uranium 5, 13, 40

Z

Zambia 15, 71 Zimbabwe 15, 53, 61, 64, 71