By: Zawya

The Mines and Minerals Bill [link] was published in the Gazette on the 25th June.  It has been given its first reading in the National Assembly and the Parliamentary Legal Committee [PLC] is currently examining it to assess whether or not it is consistent with the Constitution.

The PLC examined an earlier Mines and Minerals Bill in 2022 and found several clauses to be unconstitutional.  In this bulletin we shall look at the current Bill to see if the unconstitutional aspects of the earlier Bill which the PLC identified have been retained or rectified.

The PLC’s Report on the Previous Bill

Three years ago the Government published a very similar Bill, which lapsed when Parliament was dissolved immediately before the 2023 general election.  That Bill, as we have said, was examined by the PLC and found to be unconstitutional in several respects.  The PLC’s adverse report can be accessed on the Veritas website [link].

The PLC found that the following provisions of the old Bill were unconstitutional:

·      Clause 6(4)(a) (its equivalent is clause 6(4) of the new Bill), which stated that anyone wishing to mine a strategic mineral had to demonstrate a capacity to invest at least US $100 million or a greater or lesser amount prescribed by the Minister.

The PLC found this was unconstitutional on the following grounds:

1. The amount was so high it would prevent ordinary citizens from mining strategic minerals and would amount to unfair discrimination on economic grounds, violating section 56(3) of the Constitution.

2. It would also violate section 13(4) of the Constitution, which requires the State to ensure that local communities benefit from resources in their areas.

3.  The Minister’s power to vary the amount was open to abuse and would violate the principle that laws must be certain, which is an important element of the rule of law enshrined in section 3 of the Constitution.

Does the new Bill remedy these defects?NO.  The new clause 6(4)(a) requires miners to demonstrate an ability to invest “such minimum sum as the Minister may prescribe” and lays down no specific amount for the investment.  From the tenor of the clause however the prescribed amount will be very high, beyond the reach of all but the most serious miners [the memorandum to the Bill in fact says that miners will have to commit to invest at least US $1 million].  Furthermore, there are no guidelines or parameters limiting the Minister’s discretion, so the Minister’s power to fix and vary the amount will be just as wide as in the former Bill.

·      Clause 8(3)(a) (clause 9(3)(a) in the new Bill), which stated that members of the Mining Affairs Board who were public servants should remain members “indefinitely”.  The PLC found the clause violated principles of good governance laid down in section 9 of the Constitution, which demanded that members of the Board should serve fixed terms.  “No office on any Board,” the PLC said, “can be allowed to run in perpetuity.”

Does the new Bill remedy the defect?  NO.  Clause 9(3)(a) of the new Bill says that members hold office for “a renewable term of four years”, which means that their terms can be renewed indefinitely – which the PLC decided was unconstitutional in the earlier Bill.

·      Clause 12 (clause 13 of the new Bill), which permitted the Mining Affairs Board to state questions of law for decision by the Supreme Court, and gave the Court power to decide those questions.  The PLC found this provision to be unconstitutional because section 168 of the Constitution declares the Supreme Court to be a court of appeal which hears only cases coming from courts, not from bodies such as the Mining Affairs Board.

Does the new Bill remedy this defect?  Yes, but only by creating another constitutional difficulty.  According to clause 13 of the new Bill, the Mining Affairs Board will be able to state questions of law to be decided by the Administrative Court.  This is legally permissible, though the High Court would be a better forum to decide questions of law.

Although the Bill cures that defect, it goes on to create a worse one.  Under clause 331 the Chief Justice will be obliged to set up a new Mining Court as a specialised Division of the High Court and, once he has done so, references in the Bill to the Administrative Court will have to be construed as references to the new Mining Court – except that the Administrative Court will “continue to have exclusive jurisdiction” over certain matters set out in the Eighth Schedule to the Bill.  Not only is this very confusing, it is also unconstitutional because section 171 of the Constitution gives the High Court original jurisdiction over “all civil and criminal matters throughout Zimbabwe”.  By purporting to give the Administrative Court exclusive jurisdiction over some mining disputes, the Bill seeks to deprive the High Court of its constitutional jurisdiction – which it cannot do.

·      Clause 35(4) (clause 37(5) of the new Bill) which stated that if a landowner refused permission for prospecting to be carried out near his or her homestead, the landowner would be prohibited from acquiring mining rights over the land for ten years.  The PLC considered this violated landowners’ property rights under section 71 of the Constitution and unfairly favoured the rights of miners over those of landholders.

Does the new Bill remedy this defect? No. The new provision is exactly the same.

·      Clause 37 (clause 39 of the new Bill), which allowed landholders to register up to 100 hectares of their arable and pastoral land with a provincial mining director in order to protect the land against prospecting and pegging.  The PLC considered this prejudiced landholders and farmers at the expense of miners.  The PLC was also of the view that registration of land was the prerogative of the Ministry responsible for lands, not mines, and therefore the provision violated section 194(1) of the Constitution, which required government institutions to co-operate with each other.

Does the new Bill remedy this defect?  No. The new provision is exactly the same.

·      Clause 59 (clause 61 of the new Bill), which stated that if a miner had more claims than he or she had disclosed when registering his or her block of claims, the provincial mining director could demand payment from the miner for the extra claims.  The PLC thought this provision, like many others in the Bill, gave too much power to provincial mining directors and would encourage corruption:  the power to demand and receive money should be vested in the Mining Affairs Board.

Does the new Bill remedy this defect? No.  The new provision is the same.

We should add that neither the old nor the new Bill seems to give miners a right to appeal against decisions of provincial mining directors so they are left without a proper remedy if directors incorrectly assess the number of their claims.

·      Clauses 72 and 111 (clauses 74 and 113 of the new Bill):  clause 72(8) of the old Bill declared that there would be no appeal against certain decisions of the Mining Affairs Board, and clause 111 made a similar provision for certain decisions of the Minister – the decisions would be final.  The PLC considered these clauses violated section 68(3) of the Constitution, which states that the law must provide for a review of administrative decisions.

Does the new Bill remedy these defects?  Yes, but only by creating fresh constitutional difficulties.  The new clause 74 (equivalent to clause 72 of the old Bill) now says that decisions of the Mining Affairs Board will be reviewable by the Administrative Court [which will actually be the new Mining Court – see above] but only on very narrow procedural grounds specified in the clause.  Clause 113 of the new Bill – equivalent to clause 111 of the old Bill – makes a similar provision for decisions of the Minister.  The problem here is that section 68 of the Constitution gives everyone, including miners, the right to:

“administrative conduct that is lawful, prompt, efficient, reasonable, proportionate, impartial and both substantively and procedurally fair”.

The procedural grounds of review permitted by clauses 74 and 113 are far narrower than those mandated by the Constitution – in particular, they will not allow courts to decide whether the decisions they are reviewing are reasonable, proportionate and fair, which is what the Constitution requires them to do.  Hence the new clauses are unconstitutional.

·      Clause 130 (clause 132 of the new Bill):  This clause stated that the grant of a mining lease over an area automatically cancelled the registration of all mining locations within the area.  The PLC considered this provision deprived the miners concerned of their property rights without the safeguards set out in section 71(3) of the Constitution:  in particular, the miners were not to be given notice of the cancellation, there was no provision for the government to get a court order confirming the cancellation, and the holders of the mining locations were not entitled to compensation.

Does the new Bill remedy this defect?  No. The new provision is the same.

·      Clause 131 (clause 133 of the new Bill), which prohibited anyone from challenging the validity of a mining lease.  The PLC considered this violated section 68 of the Constitution, which states that everyone whose rights have been affected by administrative conduct – in this case the grant of a mining lease – has the right to be given written reasons for the conduct.  More pertinently, the provision violated section 69 of the Constitution, which gives everyone the right to have their disputes resolved by a court or other tribunal.  This means that a miner whose mining rights have been cancelled because of the grant of a mining lease to someone else, for example, or the holder of a mining lease who thinks he or she should have been granted a larger one, must have a right to take the matter to court.

Does the new Bill remedy this defect? No. The new provision is the same.

·      Clauses 246 and 251 (clauses 248 and 253 of the new Bill):  These clauses allow mining locations that are not being worked to be expropriated and transferred to the Minister of Mines.  The PLC felt that they should be transferred to the State, not the Minister, presumably to avoid corruption.

Does the new Bill remedy this defect?No.  The new provisions are identical.

·      Clause 259:  This clause prohibited officials in the Ministry of Mines from holding any financial or proprietary interest, direct or indirect, in mines or mining companies.  The clause went on to say that in any legal proceedings accused officials would bear the burden of proving they did not act contrary to their duties as public officers.  The PLC thought that shifting the burden of proof was unconstitutional.

Does the new Bill remedy this defect?  Yes, but in a shocking way.  The entire clause has been omitted, so the Bill now contains nothing to prevent officials in the Ministry from acquiring mining interests for themselves.  The opportunities this gives for corrupt behaviour are obvious.  Admittedly there are other laws that penalise corruption – sections 173 and 174 of the Criminal Law Code, for example – but omitting the clause from the Bill sends entirely the wrong message to public servants, the message being:  Join the Ministry of Mines and get rich.

·      Clause 298 (clause 308 of the new Bill):  This clause made it a criminal offence for persons who discovered precious stones not to notify a provincial mining director within ten days of the discovery.  The PLC felt that the clause imposed absolute liability on persons who discovered precious stones, even if they did not know the nature of what they had discovered, and so the clause was unconstitutional.

Does the new Bill remedy this defect?  No.  The new provision remains the same.  The defect would be very easy to put right, simply by adding words imposing criminal liability only on persons who fail to report their discovery “knowingly and without lawful excuse”.

Conclusion

In this bulletin we have confined ourselves to seeing if the constitutional problems the PLC found in the earlier Bill have been rectified in the new Bill, and we have demonstrated quite clearly that they have not.  There are many other defects in the Bill which we have not touched on, and not just constitutional ones.  We shall deal with them in future bulletins.