by Josephine Chiname-Zimbabwe Environmental Law Association
Over the past decade,
China has emerged as a global political and economic power. It has become Africa’s
largest trading partner and has signed bilateral ties with 45 African countries.
48 out of the 54 African countries have
established diplomatic ties with China. Between 2005 and 2017 China invested $58
billion in sub-Saharan African mining and energy sectors. Despite the commodity
price downturn, China continues to be a leading investor in the global mining
the increasing footprint of Chinese corporations in the mining sector in Africa in general and
Zimbabwe in particular has created huge controversies based on how Chinese
businesses seemingly ignore human rights and environmental responsibilities in
host mining communities. Recently, the issue of unfair labour
practices and use of violence by Chinese nationals in the mining sector has
been topical. On 21st June 2020, Wendy Chikwaira and Kennedy
Tachiona were shot by their Chinese Mine employer at Reden Mine in Gweru
for allegedly demanding their unpaid salaries. The incident confirmed
allegations that Chinese companies operating in Zimbabwe have a total disregard
of fair labour practices. There are also reports to the effect that Chinese
companies operating in Zvishavane area, blatantly disregard the rights to a
clean and safe environment by disposing effluent in rivers, by developing on
wetlands and air pollution from dust emission. A
number of the companies are accused of failing to conduct Environmental Impact
Assessments (EIAs) before commencing operations in the mining sector.
The following paragraphs will outline the responsibilities that Chinese businesses have with regards to respecting human rights in Zimbabwe. Given that Zimbabwe boasts of a significant and diverse mineral resource base estimated at sixty-six (66) base and industrial mineral deposits which are strategic for China’s Belt and Road Initiative, the footprint of Chinese commercial activity is likely to increase,moreso, given the “open for business mantra” adopted by the Government of Zimbabwe post November 2017 which is meant to attract foreign investors in various key sectors of the Zimbabwean economy. Chinese corporations such as the as Anhui Foreign Economic Construction Group (AFECC) through its subsidiary Anjin Investments, SAN HE (Pvt) Ltd, Bundei China Ltd and Asia Ferry Smelting already have noticeable footprints in Zimbabwe’s mining sector.
Chinese Human Rights
In discussing the
responsibilities of Chinese investors on human rights in the mining sector in
Zimbabwe, it may be important to give a general outlook of the concept of human
rights in China as the home country background may have an influence on how
Chinese businesses regard human rights in Zimbabwe.
Research shows that China’s preferred understanding of
human rights is that ‘universal’ human rights are goals to be attained on the
path to development rather than binding legal obligations. This means that
collective socio-economic or ‘survival’ rights are firmly prioritized over
individual civil and political rights.
Chinese authorities firmly believe that the Western human rights model cannot
be considered universal since states and regions differ in cultural and
civilizational development. Therefore, according to the Chinese since rights
are given by the state, they cannot be claimed by or for oneself.
Zimbabwe’s human rights concept is different from that of China. For starters, Zimbabwe subscribes to the individual nature of human rights. Furthermore, Zimbabwe believes all rights have equal status and that socio-economic rights do not hold more weight than civil and political rights. Therefore, all rights, for instance, labour rights, freedom of expression, freedom of association have equal status and are all necessary to protect human dignity. In the Zimbabwean context, the protection, promotion and respect of human rights is a binding legal obligation. This means that anyone alleging the infringement of human rights as enshrined in Zimbabwean Constitution by any duty bearer can approach the courts for redress. It is therefore worth noting that there is a huge ideological contradiction on how Chinese and Zimbabweans understand and approach human rights.
Human Rights Obligations of Chinese
According to the
Declaration of Rights, natural and juristic persons such as companies and any
organisations that have legal capacity to act on their own can sue or be sued
for human rights violations. The Zimbabwean Constitution is progressive in that
not only does it address the vertical relationship between the state and
private persons, it also applies the same standards horizontally when it
regulates the legal relationship between private persons. By virtue of sections
44 and 45(2) of the Constitution, private persons have an obligation to respect,
protect and fulfil and promote the fundamental human rights enshrined in the
Declaration of Rights. This means a natural person can enforce their
fundamental rights against juristic persons like companies (or other private
persons). For instance, an individual can make a claim against a mining company
that is polluting the environment citing violation of their right to an
environment that is not harmful to their health and well-being provided for in
terms of section 73.
investors have an obligation to protect, promote, respect and fulfil the rights
provided for in the Constitution whilst conducting their operations in the
mining sector. This obligation extends to legislation which gives effect to the
rights, for instance the Mines and Minerals Act, Zimbabwe Investment and
Development Agency Act, Environmental Management Act and the Labour Act, among
All Chinese mining
companies operating in Zimbabwe have a duty to discharge this obligation in
respect of human rights. The Government of Zimbabwe, its institutions and
agencies have a duty to monitor and enforce human rights compliance in the
conduct of business by Chinese investors. The Government of Zimbabwe also have
a duty to provide access to remedy in cases of violation of any fundamental
rights enshrined in the Constitution. The Chinese embassy in Zimbabwe has
repeatedly said that whilst the Chinese government, in accordance with its laws
and regulations, protects the legitimate rights and interests of overseas
Chinese enterprises and citizens it always requires the enterprises to abide by
the laws and regulations of the host countries and respect local customs.
Despite Chinese investors operating in Zimbabwe’s mining sector which has clear obligations to respect human rights including environmental and labour rights, allegations of violations of these rights are being levelled against them. The Constitution of Zimbabwe is clear on their obligations on human rights and the moment the investors commence operation in Zimbabwe they are bound by the dictates of the Constitution. To bridge the gap between having legal obligations and practice the following needs to be done:
- The Zimbabwe Human Rights Commission (ZHRC) should discharge its mandate to protect, promote and enforce human rights by continuously monitoring and investigating the conduct of Chinese business in Zimbabwe as some cases of human rights violations may go unreported.
- The Zimbabwe Investment and Development Agency in partnership with Civil Society Organisations, Chinese Embassy in Zimbabwe, ZHRC and relevant Government Ministries must engage Chinese businesses on their human rights obligations when conducting their business in the country.
- There is a need to build strong institutions covering the executive, legislature and the judiciary in Zimbabwe. These institutions should monitor compliance with the law, enforce the laws and provide effective access to remedy in cases of violation. They should also detect, investigate and prosecute corruption which has resulted in impunity on human rights violations in Zimbabwe.
- Government needs to give mineral rights and contracts to Chinese investors in a transparent manner that is open to the public and other state institutions. This allows timely and sufficient access to accurate information that the public who can use this information to engage Chinese investors and hold them to account in cases of human rights violation.
- State Owned Enterprises operating in the mining sector need to lead by example in terms of respect of human rights in the mining sector. This will give guidance to all the investors including Chinese who will be coming into the sector on the best practices to follow. If State owned enterprises fail to follow the law and respect human rights, there is no guarantee that others will conduct business in a different manner.
2014 Yun Sun : Africa in China’s Foreign Policy
Cui Shoujun: Sino-Africa Relations – The Political and Economic View.
See: http://www.zela.org/download/no-strings-attached-the-plight-of-workers-at-chinese-controlled-mines-in-zimbabwe-the-case-of-anjin-diamond-mine/ .
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Sceats and S. Breslin, China and the International Human Rights System Sonya
Sceats with Shaun Breslin https://www.chathamhouse.org/sites/default/files/public/Research/International%20Law/r1012_sceatsbreslin.pdf
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human rights concept and its international promotion RUDN Journal of Sociology
2019 Vol. 19 No.1 20—30 http://journals.rudn.ru/sociology