By Clarity Sibanda

As we continue with our mandate of raising awareness among communities to assert and claim their environmental, economic, social and cultural rights within the natural resource and environmental sectors we decided to capture citizens’ voices through images. The month of February saw us touring resource rich communities in Zimbabwe where we captured the images that portray the grave injustices that have been brought about by mining investors. The 13th of March saw the organisation bringing together Chivi community members and local leaders for a Photo Voices Exhibition which was held at a community hall.

The pictures evidently illustrate that although Zimbabwe is endowed with vast mineral deposits, very little benefits have been realized. From the photo voices shooting it was revealed that host mining communities suffer environmental, socio-economic and cultural rights violations occasioned by state and non-state actors.

Currently, Zimbabwe’s mining sector is one of the major sectors of the economy that still has a large proportion of foreign ownership. However, while commonly presented as a sector providing development opportunities for the national government and local communities, mining has also been named ‘‘the evil sector’’ because of its projects that repeatedly trigger a cocktail of problems such as livelihood shifts, displacements from ancestral lands and insidious social, cultural, environmental, and economic changes. By its very nature, the mining industry, just like the oil and gas industries, leaves behind a ‘‘footprint’’ of environmental, social, and economic impact.

In the Nyamutsahuni area, a Chinese  company desecrated graves in search of the precious stone.

A case in point being Mutoko, Mutoko is located in the northeastern part of Zimbabwe. It lies within Mashonaland East Province and shares boundaries with Murewa, Mudzi, and Nyanga Districts. In terms of socio-economic development, Mutoko District is ranked among the ten least developed districts in Zimbabwe inspite of the proliferation of granite mining. Mutoko villagers despite living in the midst of the sought after precious granite stones which are in high demand in Europe and America are living in abject poverty. Mining in the community can be traced back to 1972 but the locals have nothing to show for it. According to the Global Press Journal, Mutoko granite was used in the construction of the $82 million Royal Danish Library in Copenhagen, Denmark, which measures 21 500m2. At least seven companies are extracting granite in the district. However, relations between some investors and the locals remain sour. The locals are blaming the companies for not protecting their social, economic and cultural rights. Sliced mountains, random cutting down of trees and water grabbing have left Mutoko district a living example of the ecological crisis bedeviling planet earth.

At least two families have lost their loved ones who fell into gullies left open by granite mining companies in the district. Granite extraction has also impacted their cultural beliefs and practices in ways that are detrimental to their well-being. In the Nyamutsahuni area, a Chinese company desecrated graves in search of the precious stone and for the locals this is unacceptable and totally against their cultural beliefs.
From the interviews conducted during the photo voices shooting, the perception amongst the locals has been the ineffectiveness of the local leadership in solving problems and controlling the actions of investors. Issues of corruption and political party allegiance also came under the spotlight. For the locals, citizen participation although legislated is not being put into consideration by the leaders. The lack of upward flows of information and citizen roles within the rest of the system gives little meaning to the notion of citizen participation in natural resource management and its governance.

Zimbabwe’s indigenous communities must fully benefit from the mineral resources. There is an emergent realization that mining could be a key instrument in establishing infrastructure for development. This is embodied in Africa’s Mining Vision (AMV) that contains important strategies for the maximization of the impact of mineral resources on growth and development. Many African countries do not have sustainable development principles in their national mining policies. Therefore, the AMV aims to achieve a “knowledge –driven African Mining sector that catalyses and contributes to the broad-based growth and development.

For the communities, policies must be suitably tailored to promote inter-generational equity in the mining sector. Without the necessary legal predicate, local communities in Zimbabwe will continue to suffer at the hands of mining companies. A mutually beneficial partnership between the state, the private sector, civil society, local communities and other stakeholders must be developed. Harnessing mineral resources for economic development and community empowerment is critical in addressing the poverty scourge and overally improving the quality of life for all Zimbabweans.

As ZELA, we are running the Responsible Investment campaign where we are calling on the Government of Zimbabwe, mining Companies and other duty bearers to ensure that mining operations are not violating the rights of local communities. To get involved in the campaign, follow the hashtag #ResponsibleInv on Facebook and Twitter. Please kindly follow the link https://www.ipetitions.com/petition/responsible-investments-campaign#.W5d and sign an online petition.

Z

By Mutuso Dhliwayo

Introduction

One of the Zimbabwe Environmental Law Association (ZELA)’s areas of programming under its current strategic plan is wildlife, which falls under the Land and Natural Resources Programme. However, apart from some work that was done during the formative years of the organization under the then Transboundary Natural Resources Management Programme (TBNRM), nothing much has been done on this very important sector which is integral to ZELA’s work on natural resources governance.  The good news is that this is about to change.

Ongoing work

ZELA is partnering with the African Wildlife Foundation (AWF) under a European Union (EU) funded Project “Partnership for improved anti-poaching and compatible land use in community lands of the Lower Zambezi Mana Pools Transboundary Conservation Area”.  In the partnership ZELA is looking at three areas:

1. Providing legal support to Mbire Rural District Council in the development of a community wildlife conservancy in wards 1, 2 and 11
2. Illegal wildlife trafficking
3. Supporting the development of a productive and sustainable fisheries sector in the Lower Zambezi

Under the Zimbabwe Resilience Building Fund (ZRBF), which is being implemented in Kariba,Bingaand Mbire Rural District Councils (RDCs),ZELA is partnering with Action Aid International Zimbabwe on Human and Wildlife Conflict(HWC) issues. To that end, a stakeholdersnational dialogue workshop on HWC was convened in September 2018. Its objectives were to discuss the major causes of the conflicts and the socio-economic impacts between human and wildlife, the need for stakeholders to come up with possible solutions to the HWC challenges and the engagement of policy makers and various stakeholders on HWC issues.

Under the Global Environmental Facility 6 (GEF 6) project titled “Strengthening Biodiversity and Ecosystems Management and Climate Smart Landscapes in the Mid to Lower Zambezi Region of Zimbabwe” ZELAis a collaborating partner in the implementation of the project. In partnership with AWF and BIO HUB under the leadership of Zimbabwe National Parks and Wildlife Management Authority (ZNPWMA), is facilitating the development of a Human and Wildlife Conflict Policy. To that end, a workshop was held to come up with a road map for the development of the HWC policy in February 2019.

Furthermore,under the GEF 6 project, ZELA was requested by the ZNPWMA to facilitate a workshop on “Conservation policy   and Legislative gaps identification and terms of reference for the establishment of a Multi-agencyCrime Prevention unit”.

The purpose of the workshop was to identify the gaps in policy, law and capacity in our domestic legal environment in as far as wildlife conservation is concerned and to determine the major gaps that exist in institutions, which deal with wildlife law enforcement as well. Issues like the role of organised crime and how best to combat it using policy and law will be looked at as well. The workshop identified the pitfalls in the existing wildlife policy and profferd solutions. This marked the beginning of the gap analysis process of our wildlife conservation legal and policy framework. The workshop was also used to identify terms or reference for the establishment of a multi-agency crime prevention unit. A unit that is aimed at easing law enforcement cooperation in operational activities in the framework of easing challenges associated with different institutional mandates.  

The fact thatthe ZNPWMA has identified ZELA as a partner to spearhead workshops and meetings related to the development ofa HWC and Wildlife Policy is an endorsement of the value proposition that ZELA brings into wildlife conservation and management issues in Zimbabwe from a legal, policy and institutional frameworks perspective.

Looking ahead

Going forward, ZELA will be doing a number of researches looking at wildlife issues. These researches are:

1. Reform of the Parks and Wildlife Act:  Opportunities for Incorporating 21^st century Sustainable Wildlife Management Principles
2. Wildlife crime cases that involveelephant  and rhino poaching, possession and smuggling.

It is hoped that these researches will feed into envisaged and ongoing reforms to reform the legal and policy frameworks for wildlife management including alignment with the 2013 Constitution.

Conclusion

Through its current and proposed work, ZELA hopes to position itself as a key stakeholder in the wildlife sector to ensure that the sector is managed in a sustainable, transparent and accountable way so that it contributes towards socio-economic development in Zimbabwe.

By Josephine Chiname and Bridget Mafusire

Introduction          

The law is a conduit for economic development as it creates an environment for steady and fundamental growth to occur. The interplay between the legal principles and local developmental concerns is a critical one. For community members from natural resource-rich areas, the law can be the protection they need against abuse of basic human rights on the one hand, and the tool for holding local investors to account. In Zimbabwe’s diamond rich Manicaland region, community members have in some instances benefitted from taking legal action to enforce their rights, and ensure that they hold investors and government accountable.

This article explores the role of litigation in facilitating economic development. It delves into existing case law, and looks at how each of these cases has in their own way contributed to upholding the rule of law, and economic development in Zimbabwe.

The importance of litigation

Public Interest Litigation (PIL) has proven to be of paramount importance in ensuring that community rights are upheld. Unlike regular litigation, PIL focuses on achieving socio-economic change that positively impacts the lives of the communities as opposed to an individual. It is true that a positive court outcome may ultimately be ineffective if it is not combined with other activities to further the cause of the communities. Enforcement of and monitoring compliance with favourable court decisions should not be taken lightly,  PIL works best as part of an innovative campaign on the basis of a broaderunderlying theory of change. In order to become effective for societal change therefore, the court process must be conducted in conjunction with other complementing activities such as community capacity building, research, and advocacy campaigns among others.

PIL Enablers in the Constitution

In addition to individual persons acting in their own interests, or in the interests of another, Section 85 (1) of the Constitution extends legal standing to;

1. Any person acting as a member, or in the interests, of a group or class of persons.
2. Any person acting in the public interest.
3. Any association acting in the interest of its members.

This provision abandons the traditional approach which calls for application of rules of legal standing through the direct and substantial interest test as was enshrined in section 24 of the Lancaster House Constitution.In Malvern Mudiwa& Anor v Mbada Diamonds& Others (2009) applying the traditional approach, the court held that the Applicants had no legal standing to represent the interests of the community. But with section 85 (1) of the constitutionthey surely can.

The expanded bill of rights with justiciable environmental, economic, social and cultural rights (EESCR) can act as a facilitator for communities to realize socio-economic changes. The previous constitution did not make provisions for these. Environmental rights for instance were only recognized in the Environmental Management Act (of 2002).

In addition, Section 85(3) (d) and 167 (5) (c) of the constitution allow a person to appear in the constitutional court as an amicus curie (friend of the court). Rule 10 of the Constitutional Court Rules gave effect to this provision. In terms of our law, an amicus curie can be invited by the court or one can make an application to be considered as such.These provisions allow organisations and experts who may not be part of the legal proceedings to make representations before the court on a particular legal matter for the ultimate benefit of the community.

The Zimbabwe Environmental Law Association (ZELA) has in the past been a friend of the court, and at present has taken a bold step in establishing a PIL Unit based on the great need for this in EESCR issues. Since its inception ZELA, identified PIL as one of its strategies. Up until recently, the litigation had been sporadic. But since the establishment of the PIL Unit in January 2019, ZELA now has two fully dedicatedPIL lawyers, and its PIL Unit has been revamped and is ready to file process. ZELA’s work covers programmes in protecting the rights of communities in mining and extractive industries, land and natural resources, local service delivery, climate change and energy, responsible business and investments.

Reflections on legal disputes

1. Protection from Arbitrary evictions (2009)- Malvern Mudiwa &Anor v Mbada Diamonds & Others (2009)

In December 2009, Chiadzwa community members, with the assistance from ZELA filed an urgent chamber application to stop their eviction and relocation by diamond mining companies and the government until the issue of compensation had been addressed. They also sought to prevent the companies from mining until an EIA had been conducted as required by the Environmental Management Act.The application was dismissed on the basis that it was not urgent. The judge pointed out that the community should have raised the issues when mining activities commenced in 2007. The court also held that the applicants had no legal standing to bring the case on behalf of the community in their own capacity.

The lessons learnt from this case is the importance of timing when filing PIL cases and the procedure to pursue.Though the court judgment was unfavourable, the diamond companies revealed information under oath regarding the relocation of the communities and the Chiadzwa community was able to hold government and the companies to account regarding accommodation and other social amenities. For example, before the court case; community members were moved into tobacco barns. After the court case and having been armed with the information that was disclosed in submissions to the court, community mobilization resulted in the construction of model three bed roomed houses, outside kitchen and toilets and some social amenities like a school. Whilst what was provided may not have been of the appropriate quality, it was better than the old tobacco barns.

Commenting on the role of litigation as a community empowerment tool, Mr. Mudiwa said:

‘As a community, we used to be afraid about speaking about rights as we thought this would be judged to be political. However, the training we have received from ZELA about our EESCR through the various projects, gave us the knowledge and confidence to defend our rights against those violating them and also to the greater population of our community as we are no longer afraid to demand the realization of our rights’. (ZELA, 2012)

• Access to information (2018)- The Trustees of Arda Transau Relocation Development Trust v The Minister of Local Government Public Works & Ors HC 68/18

The Applicant, a registered trust represents the interest of the people who were relocated to ARDA-Transau from Marange when various mining companies began their activities. The residents had questions regarding their compensation, security of tenure in ARDA-Transau and the availability of basic amenities in the new area. In order to assert their rights, the community required information from the Ministry of Mines that is the EIA reports, minutes of the meetings held by the government and so forth.When approached by the community, the ministry refused to furnish the information.

This led to the community, with the help of ZELA to institute a PIL case against the Minister and ZCDC. On the 24^th January 2019, the community obtained an order which compels the ministry to furnish requested information within three (3) months.

ZELA together with the ARDA-Transau Development Trust and the community as a whole needs to monitor the Minister’s compliance with the judgment.The enforcement of this judgement is work in progress.

• Adequate compensation-Cherechedzai Chiadzwa & Anor v Ministry of Local Government & Others

In December 2016, Marange Development Trust obtained an order which prohibited ZCDC to evict the Trust’s members. The other 26 families who benefited from the order consented to their subsequent relocation. The two applicants in this matter refused to be relocated without the issue of compensation having been fully addressed. Dialogue with the company and other relevant companies failed. Through the assistance of ZELA, they filed an application.

Again, monitoring and demanding enforcement of the order is of paramount importance and this matter is also work in progress. Should the applicants fail to agree on the amount of compensation to be paid by the Ministry, ZELA will assist them to file another application with the administrative court in terms of section 80 of the Mines and Minerals Act.

•  Enforcement of environmental rights-ZELA & Others v Anjin Investments (Pvt) Ltd & Others

In this matter, the plaintiffs brought a claim in the High court regarding the disposal of effluent from the defendants in the Odzi, Save and Singwizi rivers. The companies tried to argue that EMA is the first local remedy that the community members should seek to address their concerns, this position was held to be incorrect by the Court since EMA has not the right to make declarations on issues pertaining to rights.

The Precedent that was set regarding the fact that EMA is not a dispute settlement body is of importance in reiterating the jurisdiction of the court on EESCR matters.

• Non-PIL litigation

Information derived from private interest litigation can also be used for advocacy. In February 2016, the Minister of mines and mining development ordered mining companies to cease operations in Marange area.The decision by the Minister resulted in many civil actions instituted by the diamond companies.There were civil suits instituted by Anhui Foreign Economic Construction Group Ltd, Anjin Investments (Pvt) Ltd and Grandwell Holdings (Pvt) Ltd.

As a result of the civil cases, the Joint venture agreements between ZCDC/ZMDC and the diamond companies became public. CSOs and communities can now analyse these and advocate for clauses and obligations that take into account community rights.

The cases also revealed that ZMDC and its joint venture partners contravened the Mines and Minerals Act and exploited minerals based on invalid special licenses. This information can be used to demand transparency on issues relating to licensing and to monitor legal compliance by mining companies.

Current state of play and way forward for communities

Litigation for socio-economic change has in the past been beneficial to communities in the diamond mining sector, however there is room for more to be done in holding mining companies accountable.More cases should be filed to ensure lasting success and build precedent that communities can use.In order to do this however, communities must be educated to build their capacities to identify potential rights violations.  This work is part of ZELA’s strategy to reach out to communities through training of paralegals who are identified community champions trained in legal issues and skilled to record and report rights violations in their communities. ZELA PIL Unit is dedicated to providing legal services on issues brought to its attention by the paralegals.

Community members further decry the issue of employment opportunities for local community members. Section 14(1) of the Constitution provides that the state and all institutions and agencies of government at every level must endeavour to facilitate and take measures to empower, through appropriate, transparent, fair and just affirmative action, all marginalised persons, groups and communities in Zimbabwe. With the coming into operation of the state owned ZCDC as the main player in the diamond mining sector, it is an obligation of the state to include employment creation for local marginalized communities, and empowerment in its immediately measurable results.

Empowerment initiatives must include upskilling community members to partake in the crafting of policies that affect them. So far, community members in Marange have not been consulted in the formulation of the recently published Diamond Mining Policy, this is a major anomaly.

Thanks for joining me!

Good company in a journey makes the way seem shorter. — Izaak Walton