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The regulation of the extractives sector in Zimbabwe has recently come under scrutiny due to the uncertain social, economic and political environment. Zimbabwe's mining sector was under colonial legislation for a long time and that legislation has recently been reviewed. Existing extractives sector laws do not adequately promote transparency and accountability, an issue recognized by stakeholders throughout the mining sector. The advent of the new constitution and law reform processes indicates Zimbabwe's intention to incorporate good governance, transparency and accountability provisions in the mining sector. State driven reforms have been inspired by global and local civil society initiatives. Analysis shows that, for various reasons, the government does not readily embrace such initiatives, which are important drivers of official policy and legal reforms. Zimbabwean environmental civil society groups have been exceptional in this regard.
1 Mudhunguyo, C and Ndaona, A “An investigation into the contribution of mining to the Zimbabwe economy” (2012) Journal of Strategic Studies 96 at 105.
2 Jensen, NM and Johnston, NP “Political risk, reputation, and the resource curse” (2011) 44/6Comparative Political Studies 662 at 665. See also generally T Hawkins The Mining Sector in Zimbabwe and its Potential Contribution to Recovery (2009, UNDP Zimbabwe).
3 Rose, C “The application of human rights law to private sector complicity in governmental corruption” (2011) 24 Leiden Journal of International Law 715 at 716.
4 Portfolio Committee on Mines and Energy “First report on diamond mining (with reference to Marange Diamond Fields) 2009–2013” (presented to the Parliament of Zimbabwe, Harare, June 2013).
5 D Kaufmann et al “The worldwide governance indicators methodology and analytical issues” (policy research working paper 5430, the World Bank Development Research Group Macroeconomics and Growth Team, September 2010) at 3, noting: “Although the concept of governance is widely discussed among policymakers and scholars, there is as yet no strong consensus around a single definition of governance or institutional quality. Various authors and organizations have produced a wide array of definitions. Some are so broad that they cover almost anything.” In specific areas of governance, such as the rule of law, there is extensive debate among scholars over “thin” versus “thick” definitions, where the former focus narrowly on whether existing rules and laws are enforced, while the latter emphasize more the justice of the content of the laws.
7 S Mtisi et al “Extractive industries policy and legal handbook analysis of the key issues in Zimbabwe's mining sector: The case study of the plight of Marange and Mutoko mining communities” (2012, ZELA) at 9. Contrast with Wilkins, S “Can bad governance be good for development?” (2011) 53/1Global Politics and Strategy 61 at 69, reporting that the causal effect between democracy and good governance as solutions to bad governance is not always true.
8 L Kotze “Environmental governance” in A Paterson and L Kotze (eds) Environmental Compliance and Enforcement in South Africa: Legal Perspectives (2009, Juta) 103 at 103 and 105.
9 Kaufmann et al “The worldwide governance indicators”, above at note 5 at 2.
10 Wilkins “Can bad governance”, above at note 7 at 71. See also Bovaird, T “Public-private partnerships: From contested concepts to prevalent practice” (2004) 7/2International Review of Administrative Sciences 199 at 208–10, setting out criteria for assessing good public governance.
11 R Ako and N Uddin “Good governance and resource management in Africa” in F Botchway (ed) Natural Resource Investment and Africa's Development (2011, Edward Elgar) 21 at 24.
12 Some writers caution against abuse of these good norms by global capital. See Hund, J “Globalisation and the rule of law: Socio-economic reflections” (2004) 19 Southern Africa Public Law 25 who, at 26, labels the “rule of law as [an] export product of global capitalism” and argues that “a series of linked concepts have been deployed to explain the West's ascendancy and as a prescription for underdeveloped countries. The ‘rule of law’ has emerged as a concept that has been central to the economic success of the West.”
13 Kotze “Environmental governance”, above at note 8 at 106.
14 K Muller “Environmental governance in South Africa” in HA Strydom and ND King (eds) Environmental Management in South Africa (2nd ed, 2009, Juta) 68 at 73; Kotze “Environmental governance”, above at note 8; B Campbell (ed) Factoring in Governance is Not Enough: Mining Codes in Africa, Policy Reform and Corporate Responsibility (2003) 18/3 Minerals & Energy Raw Materials Report 1 at 1.
15 Ibid, Campbell; Frynas, JG “Corporate social responsibility and societal governance: Lessons from transparency in the oil and gas sector” (2010) 93 Journal of Business Ethics 163 at 164.
16 Kotze “Environmental governance”, above at note 8 at 104.
17 Id at 105.
18 Id at 120.
19 Frynas “Corporate social responsibility”, above at note 15 at 167; C Lindstedt and Naurin, D “Transparency is not enough: Making transparency effective in reducing corruption” (2010) 31 International Political Science Review 301 at 302, commenting at 304.
20 See generally C Eads et al (eds) Advancing the EITI in the Mining Sector: A Consultation with Stakeholders (2009, Extractive Industries Transparency Initiative) at 46–89.
21 This is why transparency is seen as the initiative to address the governance deficit: Frynas “Corporate social responsibility”, above at note 15 at 167.
22 L Etter “Can transparency reduce corruption? Evidence from firms in Peru and Mali on the impact of the Extractive Industries Transparency Initiative (EITI) on corruption” (master of public policy thesis, Georgetown University, 2012) at 10.
23 Ibid. See also S Tsiko “Lobbyists push for Diamond Act enactment” (7 November 2012) The Herald (Harare) available at: <http://www.herald.co.zw/lobbyists-push-for-diamond-act-enactment> (last accessed 5 March 2016); Contrast with FS Mtondoro et al “Research paper on the power dimension to mineral related corruption: Preliminary findings on the state of corruption in the mining sector: The case of gold diamond and platinum mining in Kwekwe, Gwanda, Marange and Mhondor-Ngezi” (Transparency International Zimbabwe (TIZ), 14 January 2013).
24 This borrows from international practice, including usage by the UN Development Programme in its “Strategy for supporting sustainable and equitable management of the extractive sector for human development” (December 2012), available at: <http://www.undp.org/content/dam/undp/library/Poverty%20Reduction/Extractive%20Industries/StrategyNote_ExtractiveSector.pdf> (last accessed 2 April 2015).
25 Notable examples include advocacy work by Global Witness, Human Rights Watch, Transparency International, Open Society Institute and Revenue Watch Institute, among many other global civil society organizations. These international initiatives have filtered through to regional and domestic levels with networks such as the AIMES promoted by Third World Network-Africa, Southern Africa Resource Watch and ZELA.
26 In Zimbabwe, some civil society actors are motivated by their cause and remain apolitical, while others are clear instruments of political persuasion. An example is one NGO that used to advocate heavily for the government, some of whose leaders later competed for political office on ZANU (PF) tickets.
27 Nigeria enacted the Nigerian Extractive Industry Transparency Initiative Act 2007, while Mozambique, Zambia, Niger, Mali, Liberia and Ghana are among the EITI compliant countries in Africa that report regularly.
28 It is argued and claimed that foreign funded CSOs push these initiatives to promote the ideology and agenda of the governments of their funders. However, there is not much evidence on the ground to support such claims.
29 Most in the tone of Mudhunguyo and Ndaona “An investigation”, above at note 1.
30 G Makore and V Zano “Mining within Zimbabwe's Great Dyke: Extent, impacts and opportunities” (2012, ZELA).
31 Constitution of the Republic of Zimbabwe 2013, sec 2(1).
32 It is significant that the 2013 Constitution expressly refers only to transparency and accountability in its preamble and founding principles. Sec 3(1)(h) and 3(2)(g) refer to good governance, the rule of law, transparency, justice, accountability and responsiveness as part of the founding values and principles. These preliminary parts of the constitution may not be justiciable. However, sec 9 provides further for good governance and its essential elements.
33 This includes provisions in chap 2 on national objectives, particularly good governance, development and empowerment, and fostering fundamental rights and freedoms.
34 2013 Constitution, chap 4 and particularly secs 73 (environmental rights), 77 (right to food and water), 62 (right of access to justice) and 68 (right of access to information).
35 In South Africa a similarly worded constitutional environmental rights clause has spawned well-crafted mining and environmental legislation.
36 Fuel Retailers Association of Southern Africa v Director General: Environmental Management, Department of Agriculture Conservation and Environment, Mpumalanga Province and Others 2007 (6) SA 4 (CC), Bengwenyama Minerals (Pty) Ltd v Genorah Resources (Pty) Ltd 2011 (4) SA 113 (CC) and Supersize Investments 11 CC v MEC of Economic Development Environment and Tourism Limpopo Provincial Government (70853/2011)  ZAGPPHC 98 (11 April 2013).
37 City of Johannesburg Metropolitan Municipality v Gauteng Development Tribunal 2010 (6) SA 182 (CC); AgriSA v Minister of Minerals and Energy 51/12  ZACC 9 (CC); Dugard, J and Alcaro, A “Let's work together: Environmental and socio-economic rights in the courts” (2013) 29 South African Journal on Human Rights 14. The 2013 Constitution, secs 62 and 68 guarantee administrative justice and access to information.
38 Constitution of the Republic of South Africa 1996. See generally Maccsand (Pty) Ltd v City of Cape Town 2012 (4) SA 181 (CC).
39 These include provisions giving mining activity precedence over environmental regulation and other forms of regulation.
40 The deputy prime minister has called this act a “criminal” law that is allowing the plunder of Zimbabwean minerals by individuals and multinational corporations: F Machivenyika “Need to amend mining laws” (13 February 2013) The Herald (Harare), available at: <http://www.herald.co.zw/need-to-amend-mining-laws> (last accessed 5 March 2016).
41 Mtondoro et al “Research paper”, above at note 23 at 10. Mining cannot take place unless the Environment Management Agency has approved the project after an environmental impact assessment.
42 In this sense, transparency and accountability are conceived in a broader sense beyond tracking mining revenues. There has been a tendency in the literature to focus overly on diamond revenue and money matters and less on human rights abuses, except for the pioneering work of the Centre for Research and Development in exposing gross human rights violations in the Marange diamond fields, documented by Maguwu, F “Marange diamonds and Zimbabwe's political transition” (2013) 8/1Journal of Peacebuilding & Development 74 at 74–78; Kabemba, C “The Kimberley Process and the Chiadzwa diamonds in Zimbabwe: Challenges and effectiveness” (2010) 3 Perspectives 4 at 6, available at: <http://www.boell.de/sites/default/files/assets/boell.de/images/download_de/2010-07-22_Perspectives_3.10.NEU%281%29.pdf> (last accessed 31 March 2015).
43 Mudhunguyo and Ndaona “An investigation”, above at note 1 and Mtondoro et al “Research paper”, above at note 23 at 13.
44 Hund “Globalisation”, above at note 12 at 29.
45 The Minerals Marketing Corporation of Zimbabwe Act, sec 20 provides for the functions of the MMCZ.
46 This ministry should be consulted on environmental authorization and pollution control matters.
47 MMCZ Act, sec 5 provides that the minister appoints the MMCZ board after consulting the president and representatives of special interests and affected departments. See also sec 5 of the ZMDC Act; even the ZMDC general manager's appointment is subject to ministerial approval (sec 27(1)(a)), a problem played out in Mubayiwa v Zimbabwe Mining Development Corporation case no LC104/10  ZWLC 10 (31 January 2014). See also “Masimirembwa plays one-man board at ZMDC” (3 December 2010) NewsDay (Harare), available at: <https:// www.newsday.co.zw/2010/12/03/2010-12-03-masimirembwa-plays-oneman-board-at-zmdc> (last accessed 31 March 2015).
48 Mtondoro et al “Research paper”, above at note 23.
49 Ministers often rebuff the committee, as reported in the Portfolio Committee on Mines and Energy “First report”, above at note 4.
50 B Chiketo “Zimbabwe's Marange diamonds: ZANU-PF's best friend” (4 February 2013) Think Africa Press, available at: <http://allafrica.com/stories/201302051291.html> (last accessed 5 March 2016) and Mtondoro et al “Research paper”, above at note 23 at 61.
51 N Kriger “ZANU PF politics under Zimbabwe's ‘power sharing’ government” in D Moore, N Kriger and B Raftopoulos (eds) Progress in Zimbabwe?: The Past and Present of a Concept and a Country (2013, Routledge) 11 at 22; see also Ntlhakana, S “Conflict diamonds in Zimbabwe: Actors, issues and implications” (2014) 3/1Southern African Peace and Security Studies 61 at 69, detailing the controversial shareholding of Mbada.
52 Budget speeches by Zimbabwe minister of finance, 2010 and 2011.
53 MMCZ Act, secs 42(1)(iii), 42(1)(b)(ii), 43(1) and 47.
54 Id, secs 23(3), 36 and 37 generally. While there is no express provision to table audited financial statements in Parliament, the MMCZ is bound to do so as it can receive appropriation from Parliament to its purchasing fund.
55 Reports are required under the Audit and Exchequer Act (chap 22:03).
56 MMCZ Act, sec 22(b).
57 Mudhunguyo and Ndaona “An investigation”, above at note 1 at 122.
58 Id, sec 54.
59 Mtondoro et al “Research paper”, above at note 23 at 16, claiming that the minister of mines and the president are accountable to no-one when they exercise functions under the Mines and Minerals Act.
61 The founding legislation for MMCZ and ZMDC provides as one of the key objectives the promotion of the national interest by the respective corporations.
62 D Muleya “Diamond saga: A case of deceit, fraud” (4 November 2010) The Standard (Harare), available at: <http://www.thestandard.co.zw/2010/11/04/diamond-saga-a-case-of-deceit-fraud> (last accessed 31 March 2015); B Chakaodza “Govt must come clean on Chiadzwa” (12 November 2010) Financial Gazette (Harare), available at: <http://allafrica.com/stories/201011150385.html> (last accessed 5 March 2016).
63 Indigenisation and Empowerment Act 47 of 2007, sec 7. Some of the appointments go against the requirement to appoint independent boards in the Corporate Governance Framework for State Enterprises and Parastatals (Ministry of State Enterprises and Parastatals, November 2010).
64 M Mtaranyika “Zimplats stand firm despite policy chaos” (6 March 2013) Mining MX (South Africa) 1; R Ndlovu “Mugabe broadside leaves Zimplats takeover in a muddle” (8 March 2013) Mail & Guardian (South Africa) available at: <http://mg.co.za/article/2013-03-08-00-mugabe-broadside-leaves-zimplats-takeover-in-a-muddle> (last accessed 5 March 2016).
65 House Bill no 14 of 2007, published in (16 November 2007) Government Gazette. See also C Anderson “Creating a legislative framework to govern mining in Zimbabwe” (July 2011) Revenue Watch Brief, available at: <http://www.revenuewatch.org/sites/default/files/zimbabwebriefing.pdf> (last accessed 31 March 2015).
66 Republic of Zimbabwe, Ministry of Mines and Mineral Development Draft Minerals Policy (2013); see also M Dhliwayo A Review of Zimbabwe's Draft Minerals Policy (2014, ZELA) and M Dhliwayo and S Mtisi Towards the Development of a Diamond Act in Zimbabwe: Analysis of the Legal and Policy Framework on Diamonds and Zimbabwe's Compliance with the Kimberley Process Certification Scheme (KPCS) Minimum Requirements (2012, ZELA).
67 G Sibanda “Government to overhaul Mines Act” (19 March 2013) The Herald (Harare), quoting then Deputy Minister of Mines and Mining Development G Chimanikire, who indicated that, instead of creating a mineral specific act for diamonds, the Cabinet Committee on Legislation is aiming to revamp the entire Mines and Minerals Act.
68 Part IV (acquisition and registration of mining rights).
69 For a detailed discussion of the processes, see Mtondoro et al “Research paper”, above at note 23 at 15–17 and Hon G Chimanikire “Zimbabwe's mining industry policy” (presentation to the Japan Sustainable Mining, Investment and Technology business forum, Tokyo, Japan, 16 May 2013).
70 “Distribution of mining revenue in Zimbabwe” (National Association of Non Governmental Organisations policy brief no 5/2012) and S Mtisi et al “Extractive industries policy”, above at note 7 at 35.
71 Mtondoro et al “Research paper”, above at note 23 at 8 and Mines and Minerals Act, sec 26.
72 Mines and Minerals Act, sec 27 (rights granted under prospecting licence).
73 Id, sec 36 (application to reserve 50% of forests from mining activities).
74 Id, sec 38.
75 Mtisi et al “Extractive industries policy”, above at note 7 and Mtondoro et al “Research paper”, above at note 23 at 13.
76 See above at note 23 for contrasting views and opinions.
77 This can arguably fit within disclosure under sec 28(1) of the AIPA, which allows disclosure of third party information in the public interest in defined categories, including safety and environmental protection.
78 Some argue that disclosure is required of developing countries, but developed countries seldom disclose the contracts they conclude with extractive corporations or the revenues made from the sector.
79 AIPA, sec 24(1).
80 Mines and Minerals Act, secs 31(1)(a) and 34(2) and (7).
81 For example, the Chiadzwa communities were not, until recently, provided with official information on relocation and compensation plans.
82 The Reserve Bank of Zimbabwe has exclusive marketing and trading rights over gold and silver; remaining minerals are marketed by MMCZ.
83 EMA sec 3.
84 Id, sec 1, defines “environmental impact assessment”. Id, sched 1, items 7 and 8 list mining activities.
85 Id, sec 1 defines “environment”.
86 Murombo, T “Beyond public participation: The disjuncture between South Africa's environmental impact assessment (EIA) law and sustainable development” (2008) 3 Potchefstroom Electronic Law Journal 1 at 11.
87 EMA, part IX.
88 Id, sec 7.
89 Id, sec 88 on the contents of the national environmental plan.
90 Id, sec 92(1).
91 Id, sec 92(3)(b). Mining activities are listed in sched 1 (sec 97) as projects requiring an EIA. Mining activities should also be aligned with local plans; Maccsand, above at note 38, confirms this position in South Africa.
92 EMA, sec 96(1)(a).
93 Id, sec 95.
94 Id, sec 89.
95 In contrast, environmental legislation has been the main tool used in South Africa to control the negative impacts of mining. This ranges from water use licence requirements, to preventing mining in protected environmental and heritage sites.
96 EMA, part IX, secs 60, 64 and 71, regulating effluent, air and waste licences.
97 Id, secs 70 (prohibition against discharge and disposal of wastes), 71 (application for waste licence), 64 (licensing emissions) and 65 (application for emissions licence). One of the recent issues with diamond mining has been the pollution of the river systems in Marange by mining companies.
98 Id, sec 60 and 60(4) (licence to discharge effluents).
99 Id, sec 107.
100 Id, sec 77 (definition of “hazardous substance”).
101 Id, sec 76.
102 Id, sec 10(1)(b)(xiv) and 10(2)(4) provide for the Agency's functions.
103 Government of Zimbabwe, Ministry of Environment and Natural Resources “National environmental policy and strategies” (2009) at 2. The policy is analysed at length by T Murombo “Balancing interests through framework environmental legislation in Zimbabwe” in M Faure and W du Plessis (eds) The Balancing of Interests in Environmental Law in Africa (2011, Pretoria University Press) 557 at 579.
104 Government of Zimbabwe, Ministry of Environment and Natural Resources “National environmental policy and strategies” (2009) at 2 (emphasis original).
105 Water Act of 1998 (chap 20:24), sec 34.
106 Id, sec 34(2).
107 Id, sec 34(6).
108 ZELA “Report on the scientific investigation of the impact of Marange diamond mining operations on water quality in the Save and Odzi rivers: Including assessment of the health, environmental and livelihoods impacts” (July 2012), available at: <http://woek.de/web/cms/upload/pdf/kasa/publikationen/zela_2012_report_on_the_scientific_investigation_marange_water.pdf> (last accessed 5 March 2016); ZELA and Others v ANJIN and Others Harare HC9451/12 (High Court Harare), an ongoing case in which ZELA and affected communities are suing diamond mining companies for polluting the Save River downstream.
109 Mundunguyo and Ndaona “An investigation”, above at note 1 at 112 and Mtisi et al “Extractive industries policy”, above at note 7; see also the Chamber of Mines, Zimbabwe “2011 fiscal budget analysis”, noting that high royalties are counterproductive.
110 Id, Mundunguyo and Ndaona at 122.
111 Answers to these and many other questions can be found in the tax and exchange control legislation, but importantly proposed answers are also in the Draft Diamond Bill of 2011 and the principles behind the Diamond Policy of 2012.
112 For instance, in 2010 the ZMDC claimed that it had submitted collected revenue to the minister of finance who claimed not to have received the remittance; see also Mundunguyo and Ndaona “An investigation”, above at note 1 at 122, noting that diamond production figures and remittances are always at a tangent, and Portfolio Committee on Mines and Energy “First report”, above at note 4.
113 See generally ZELA “An outline of the mining taxation regime in Zimbabwe” (2012), a basic layperson's outline of the taxes levied on mining and applicable legislation.
114 Income Tax Act (chap 23:02), sec 15(2)(f)(i) read with 5th sched; mining companies' claims that CSR activities are benevolent are incorrect, as the state essentially co-funds such activities through deductions.
115 Royalties are paid under sec 15(2)(f)(iii) of the Income Tax Act, read with the Mines and Minerals Act (chap 21:05) and the Finance Act (chap 23:04).
116 See Mudhunguyo and Ndaona “An investigation”, above at note 1 at 111–12, providing a comparative table of royalties in some Southern African Development Community countries as of 2011 and (at 109) providing a five year table showing the level of royalties levied on different minerals in Zimbabwe.
117 Chamber of Mines “2011 fiscal budget analysis”, above at note 109.
118 See generally Amnesty International “Profits and loss: Mining and human rights in Katanga, Democratic Republic of the Congo” (June 2013); International Council on Mining and Metals “Human rights in the mining & metals industry: Overview, management approach and issues” (May 2009), available at: <https:// www.icmm.com/document/8331> (last accessed 5 March 2016).
119 B Campbell Mining in Africa: Regulation and Development (2009, Pluto Books) at 243.
121 Id at 246.
122 D Szablowski Transnational Law and Local Struggles: Mining Communities and the World Bank (2007, Hart Publishing) at 45, as cited by Campbell Mining in Africa, above at note 119 at 246.
123 Szablowski, id at 27.
124 Campbell, B “Corporate social responsibility and development in Africa: Redefining the roles and responsibilities of public and private actors in the mining sector” (2012) 37 Resources Policy 138 at 140; see generally B Campbell, ER Grégoire and ML Julia “Regulatory frameworks, issues of legitimacy, responsibility and accountability: Reflections drawn from the PERCAN Initiative” in J Sagebien and NM Lindsay (eds) Governance Ecosystems: CSR in the Latin American mining sector (2011, Palgrave Macmillan) 84.
125 The Corporate Governance Framework, above at note 63, sought to incorporate King III Code principles and other modern good corporate governance principles into the management of state owned enterprises and parastatals in Zimbabwe. Persisting problems show that it has not been fully implemented.
126 As reported in the Portfolio Committee on Mines and Energy “First report”, above at note 4.
127 Increasingly, public corporations are voluntarily subjecting themselves to the King III Code of Good Corporate Governance.
128 EITI is the brainchild of Tony Blair who was its face at the World Summit on Sustainable Development in 2002. However its launch resulted from pressure from Global Witness and Human Rights Watch. Not everyone recognizes the good intentions behind EITI, particularly given the lack of transparency in some reports submitted by its members, for instance Nigeria, which was praised for being the first African country to join the initiative. See J Gouseva “EITI: A new global standard for lying” (11 September 2008) Open Democracy (Russia), available at: <http://www.opendemocracy.net/article/yes/eiti-a-new-global-standard-for-lying> (last accessed 31 March 2015); see also Etter “Can transparency reduce corruption?”, above at note 22 at 9.
129 PYWP preceded the establishment of EITI and is the brainchild of George Soros's Open Society Institute.
130 Hund “Globalisation”, above at note 12 at 27–28; Blunt, P “Cultural relativism, ‘good’ governance and sustainable human development” (1995) 15/1Public Administration and Development 1 at 3; S Mtisi (ed) Sowing the Seeds of Advocacy Work on Transparency and Accountability in the Extractive Sector in Zimbabwe (report on the proceedings of the multi-stakeholder conference on promoting transparency and accountability in the extractive sector in Zimbabwe, 22–23 September 2010) at 6.
131 Ibid, Blunt.
132 What is important is for states to implement the spirit of the EITI principles without necessarily getting bogged down with the question of whether or not they are a member of EITI.
133 “Zimbabwe mining revenue transparency initiative” (concept note developed by the office of Deputy Prime Minister Hon T Khupe, 8 September 2011).
134 Chamber of Mines budget commentary 2011 and Mtisi et al “Extractive industries policy”, above at note 7.
135 Dhliwayo and Mtisi Towards the Development, above at note 66 at 6; T Biti “Mining, taxation laws need urgent amendment”, available at: <http://www.mines.gov.zw/85-mining-taxation-laws-need-urgent-amendment> (last accessed 5 March 2016), arguing that “[t]here is need to amend the [sic] Zimbabwe's mining and taxation laws so that the country benefits from its natural resources. If we are going to wait for royalties and taxes, Government can forget using the minerals to pay for the country's debt … The mining sector requires a transparent, honest and proper evaluation report. If we are not transparent in this sector, then we should not talk about a resource-based debt repayment strategy”.
136 Feris, L “The role of good environmental governance in the sustainable development of South Africa” (2010) 13/1Potchefstroom Electronic Law Journal 73 at 73.
137 Kotze “Environmental governance”, above at note 8 at 121.
138 As noted above, EITI is a multi-stakeholder coalition of governments, companies, civil society groups, investors and international organizations; for more details, see: <http://eiti.org/eiti> (last accessed 31 March 2015).
139 EITI “Members registry”, as of 24 February 2011, available at: <http://eiti.org/files/20110224-EITI-members-registry.pdf> (last accessed 31 March 2015).
140 “Implementing the Extractive Industries Transparency Initiative: Applying early lessons from the field” (2008, The International Bank for Reconstruction and Development / The World Bank) at 60, available at: <http://siteresources.worldbank.org/INTOGMC/Resources/implementing_eiti_final.pdf> (last accessed 31 March 2015).
141 See generally Etter “Can transparency reduce corruption?”, above at note 22.
142 See for example the Nigeria Extractive Industries Transparency Initiative Act, 2007.
143 Rudra, N and Jensen, NM “Globalization and the politics of natural resources” (2011) 44/6Comparative Political Studies 639 at 654, expressing doubt and uncertainty about the potential of civil society initiatives like EITI to mediate the effects of globalization on natural resources governance.
144 In 2011 and 2012 Zimbabwe produced KPCS annual reports that detail the carats exported and their value, but how much was recovered from diamond production remains contested with the Ministry of Mines and Mining Development. See Zimbabwe 2011 Annual Report to Kimberley Process Certification Scheme, submitted by the Ministry of Mines and Mining Development, available at: <http://www.kimberleyprocess.com/en/system/files/documents/Zimbabwe%20Annual%20Report%202011_0.pdf> (last accessed 5 March 2016).
145 See generally Oshionebo, E “World Bank and sustainable development of natural resources in developing countries” (2009) 27 Journal of Energy and Natural Resources Law 193 at 203–04.
147 “Role of diamonds in fuelling conflict” (report of the UN General Assembly 55th session, official record, 29 January 2001): A/RES/55/56.
148 Currently KPCS members account for approximately 99.8% of the global production of rough diamonds.
149 Notably the World Diamond Council and Partnership Africa Canada. KPCS regularly constitutes ad hoc working groups that provide opportunities for national civil society groups to feed into its processes.
150 See generally I Smillie “Blood on the Stone: Greed, Corruption and War in the Global Diamond Trade” (2010, Anthem Press), especially chap 12 “Kimberley: A hope in hell”. Smilie gives an excellent account of the travails of the KPCS in Zimbabwe in id “Blood diamonds and non-state actors” (2013) 46 Vanderbilt Journal of Transnational Law 1003 at 1017 et seq. The UN defines a conflict diamond as “any diamond that is mined in areas controlled by forces opposed to the legitimate, internationally recognized government of a country and that is sold to fund military action against that government”; see “Blood diamond” Encyclopaedia Britannica Online, available at: <http://www.britannica.com/EBchecked/topic/1793249/blood-diamond> (last accessed 31 March 2015).
151 “The UN Global Compact is a strategic policy initiative for businesses that are committed to aligning their operations and strategies with ten universally accepted principles in the areas of human rights, labour, environment and anti-corruption”; see: <http://www.unglobalcompact.org/AboutTheGC/index.html> (last accessed 31 March 2015). For an analysis, see Oshionebo, E “The UN Global Compact and accountability of transnational corporations: Separating myth from realities” (2007) 19 Florida Journal of International Law 1.
152 These include principles of human rights, labour, environment and anti-corruption; see: <http://www.unglobalcompact.org/AboutTheGC/TheTenPrinciples/index.html> (last accessed 31 March 2015).
153 The UN appointed a special representative on business and human rights, John Ruggie, whose mandate was from 2005–11. He established a working group that has developed fundamental principles that can enable countries and corporations to operate in an environment of openness, transparency and accountability; see “Guiding principles on business and human rights: Implementing the United Nations ‘protect, respect, remedy’ framework”, available at: <http://www.ohchr.org/Documents/Publications/GuidingPrinciplesBusinessHR_EN.pdf> (last accessed 2 April 2015). See also Iglesias, C “Conflict minerals regulation: Mapping international initiatives and challenges ahead” (2014) 13/1Southern African Peace and Security Studies 45 for analysis of other international initiatives.
154 For more information on the UN backed Principles for Responsible Investment, see: <http://www.unpri.org/about-pri/about-pri> (last accessed 31 March 2015).
155 Constituted under the Sovereign Wealth Fund of Zimbabwe Act (chap 22:20) (no 7 of 2014), gazetted 10 November 2014 (general notice 461 of 2014) but not yet in force.
156 T Rosenberg “Avoiding the curse of the oil-rich nations” (13 February 2013) The New York Times, available at: <http://opinionator.blogs.nytimes.com/2013/02/13/avoiding-the-curse-of-the-oil-rich-nations> (last accessed 31 March 2015), lamenting the resource “curse” and giving examples of good uses of sovereign wealth funds.
* Associate professor of law and director, Mandela Institute, School of Law, University of the Witwatersrand, South Africa. LLB (hons) (Zimbabwe), LLM (Cape Town), LLM (Pace) and PhD candidate (Witwatersrand). The author acknowledges the research assistance of Gilbert Makore and comments on earlier drafts by Mutuso Dhliwayo of the Zimbabwe Environmental Law Association (ZELA).
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