Compiled by Joshua Y. Machinga and Nobuhle Mabhikwa-Chikuni-ZELA

Introduction

Building on to the previous blog titled, ‘Towards a formalised ASM in Zim: what to consider and why’[1], this latest blog zeros in on the merits of devolution approach in influencing formalisation of the ASM sector. In 1992 gold panning along the country’s streams was legalised and actively encouraged, provided the panners obtained the necessary permits and deposited their gold with the Reserve Bank of Zimbabwe or its agents[2]. Prospective panners were able to apply for permits to exploit the gold deposits from their respective councils. The panners were also required to rehabilitate their operations by backfilling. In those days environmental policing took place regularly. Devolution entails decentralising responsibilities to the lower tiers of government because it is endowed with the power to make policies and implement them. The government, for example, promulgated Statutory Instrument 275 (1991, Regulations on Alluvial Gold Panning in Public Streams), creating a framework wherein rural district councils (RDCs) would issue licenses to riverbed gold panners independently of the Ministry of Mines. It simply means empowering lower tiers of government to make decisions, take ownership of local affairs and providing them with adequate authority and autonomy. This makes devolution approach inevitable, and the concept can easily be applied in the artisanal mining sector.

Background

Although the artisanal and small-scale mining (ASM) sector is often characterised by ruinous effects on the environment, there is no doubt that with proper structures in place backed by progressive policies, the sector can reap far more rewards. Devolution in the mining sector is not new. In the 1990s, Zimbabwe was at the forefront of supporting small-scale mining as a livelihood option. During that time, the government also decentralised control over mining regulation and revenue collection to RDCs. The guidelines for development of small-scale mining of 1993 produced a set of guidelines for developing countries intended to provide a framework for encouraging development of small-scale mining as a sanctioned sustainable activity with recognizable contributions to economic and social goals.

The current legislation (Mines and Minerals Act, Gold Trade Act and the Precious Stone Act) do not capture the reality of the sector’s current activities. The available legislation perceives the small-scale miners (formal) and artisanal miners (informal) as parallel players, but over the years the small-scale mining system has evolved into a interwoven sector in which artisanal and small-scale miners work together through partnerships, associations, or tributary agreements. This raises the question of who is an artisanal miner? Who is illegal in the mining space, as they are now bracketed by the formalised local relations fostered by memberships to one or two association in whose name a mining claim is registered? The issue of improving safety (another facet of formalisation) at mine level is crucial, however the existing structures entail that each artisanal miner is responsible for his/her safety whilst the claim owner is profiteering on exploitation of the mineral resources. It is against this background that the blog highlights how devolution can offer an opportunity and good approach for formalisation of the sector.

Legal framework

Devolution, a key component of the 2013 Constitution of Zimbabwe is recognized as one of the Founding Values and Principles to the Constitution[3]. The devolution angle in this writing is primed in the Chapter’s preamble, especially paragraph (c) which reads

“the equitable allocation of national resources and the participation of local communities in the determination of development priorities within their areas; there must be devolution of power and responsibilities to lower tiers of government in Zimbabwe”

It is from this paragraph that tiers of the government (the provincial and local government tiers) are (as per the Constitution) required to undertake social economic development in their respective jurisdictions including but not limited to planning and implementing social and economic development activities in its province, planning and implementing measures for the conservation, improvement and management of natural resources in its province.

The devolution approach to formalising ASM sector

Recognition of the artisanal[4] and small-scale miners may be fostered at local level through formulation of governing laws that promote councils to raise their own funds and develop. Devolution may give room to a quicker way to distribute natural resource (benefits) to its citizenry given its focus on promoting local development and management of natural resources as stated in the Constitution. The local district may come up with artisanal mining licences and these should be granted based on citizenship, age (attainment of the age of majority), should be a member of an association, artisanal mining cooperative or such groupings, the person should be able to demonstrate capacity to run the mining activity in an effective and efficient manner. In the proposed approach, the miner may only be allowed to mine at the designated area for which the artisanal mining licence is granted, each licence should be for a specific individual miner or group and should contain information about the mining area. In areas where the land is not open for prospecting such as exclusive prospecting orders or mining claims registered under a principal holder, written consent from the principal holder may be used. The requirements of the artisanal mining licence may ensure that the miners operate in a sustainable manner while paying attention to safety, health, and environmental standards; reduce conflicts between farmers and miners, between miners themselves and promote sustainable mining practices.

For progressive decentralisation, there is need to capacitate offices at both the provincial and local level tiers of the government to solve mining related issues that are currently centralised with the Ministry of Mines and Mining Development such as licencing. This process may assist in formalising the ASM sector. Identification of the mining groups such as associations and cooperatives become easy considering that the RDCs have information on the miners in each district because of their centralisation in each community which may assist in licensing the miners, collect revenue from miners and even recognise them at local level. Capacitating these tiers especially the latter (RDC) to regulate the ASM sector, would ease distribution of land specifically for artisanal miners who are mostly locals. With the current setup the RDC cannot make such specialised decisions as they do not have specialised skills housed in their offices relating to mining, metallurgy, and geology. The powers to licensing miners may be delegated down to district level in the mining sector. Many offices of the Ministry of Mines and Mining Development are found at provincial level, and these offices are usually far from where the artisanal miners are located. The number of artisanal miners in the sector are more than the number of claims that can ever be registered for everyone. Having artisanal licenses that allow miners to work in groupings and recognised as artisanal miners is the way to go.

The importance of devolution

The primary objective of devolution is to delegate power, transfer resources, and provide for extensive representation down to the local level. Devolution is a way to reduce the over-centralised system of government, promote democracy, promote locally driven development, improve the delivery of public services, and promote national integration and peace while recognising diversity. Section 264 (2) of the Constitution[5] points out the reasons for decentralisation of government powers and responsibilities to provincial and local authorities. These are but not limited to giving powers of local governance to the people by enhancing their participation in the exercise of the powers of the state and in making the decisions that affect them; to recognise the right of communities to manage their own affairs and to further their development.

It is important because it ensures that decisions are made by the people and for the people. Devolution will contribute to providing greater freedoms and flexibilities at a local level, meaning councils can work more effectively to improve public services for their area. Devolution allows for provincial and local tiers of the government to develop laws and regulations to govern their own needs. This presents an opportunity to formulate formalisation strategies and models that may be fine-tuned to meet the national development agenda under the prevailing context.

With devolution, streamlining licensing which calls for better and efficient issuance of licenses is made possible. Issuance and obtaining a license can be a long and bureaucratic process that may also be open to corruption and bribery, which may discourage people engaging in ASM from obtaining a license. Streamlining the issuance of licenses for ease obtaining, developing efficient and accessible online platforms, and ensuring regulations and categories are in line with local contexts ensures formalisation of the sector[6]. The local contexts referred herein are better known by the local level tiers of the government (the RDCs).

Devolution facilitates the environmental monitoring for artisanal mining activities; strengthening of capacity and collaboration of institutions and government at both the national and local levels to develop more effective, joined-up approaches and remove overlapping functions. This would entail complementary administration and monitoring of ASM activities.

Devolution can also come in handy in registration of artisanal miners. The non-recognition of the ASM activities has criminalised the operations of ASMers contributing to IIFs, trading of gold on the black market, smuggling and violence[7]. Reports has it that the Government is working on passing into law a Statutory Instrument to facilitate registration of artisanal miners to curb illegal mining, promote formalisation and traceability of gold from artisanal and small-scale miners[8]. According to the Governor of Zimbabwe, traceability will be done through capturing biometric data of miners and issuance of registration numbers for enhanced monitoring[9]. Local level tiers of the government can be instrumental considering they preside over most of these mining areas.

One cannot turn a blind eye to the challenges that come with the current centralised system being implemented. These include but are not limited to the delayed processing of applications, a reality that is reportedly frustrating some of the miners; lack of or poor monitoring of the mining practices and activities; claim allocation not in tandem with local land use plan- cases that have been cited where a claim is allocated at high offices based on their maps that do not actually speak to the current/ designated land use on the ground. This has often led to conflict with other land users such as the farmer and the miner. There are also issues of double pegging – manual claim allocation is still being practised where old, torn and blurred maps are being used to allocate claims with none on ground verification of boundaries. This has resulted in double pegging of claims or boundary overlaps resulting in conflict too. This presents a perfect opportunity to test devolution as a solution that can put an end to all this. The decentralisation of responsibilities and powers between the provincial and local level tiers of government would increase response to applications lodged to the Ministry of Mines. With devolution it becomes easier to Implement Free Prior Informed Consent (FPIC) a principle many have failed to apply in the use of shared natural resources especially land, resulting in dispute over land use and rehabilitation.

With devolution, issues of gold smuggling and illicit supply chain, environmental and other socio-economic ills including violence will be reduced as close monitoring of mining operations will be carried out by the local authorities. In all this, devolution enhances traceability, environmental rehabilitation (monitoring), compliance issues and greater accountability which lead to increase in efficiency and effectiveness of government services by bringing governance and response mechanisms closer to the people.

Recommendations

• The specialised personnel for example, the metallurgy, geology in the hierarchy may need to be decentralised. The Ministry of Mines and Mining Development will still play an oversight role in the process.
• The devolved mining system at provincial council level would still need to conform to the constitution, despite being able to make their own provincial laws.
• The devolution system needs to give the local town councils and district councils the power to license mining activities in the mineral endowed districts.
• The finalisation of the cadastre system will play a critical role in monitoring the decentralised system.
• There is need for coordinated responsibilities among the different tiers of Government to avoid duplication of duties resulting in unnecessary back and forth
• Ensure adequacy of resources (both human and financial) at both the provincial and local level tiers of the government to ensure smooth implementation of the duties thereof.

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[1] https://machingajoshy.wordpress.com/2020/09/26/towards-a-formalised-artisanal-and-small-scale-mining-asm-sector-in-zimbabwe-what-to-consider-and-why/

[2] https://reliefweb.int/report/zimbabwe/pillage-and-patronage-human-rights-abuses-zimbabwes-informal-gold-mining-sector

[3] Chapter 14 of the Constitution of Zimbabwe provides for the provincial and local governments.

[4] In this discussion, an artisanal miner is a miner who has the capacity and drive to conduct mining activities in marginal ore bodies, and do not have the capacity to operate at a mining claim (10 ha for precious metal)

[5] Section 264 of the Constitution of Zimbabwe provides for the devolution of government powers and responsibilities

[6] https://machingajoshy.wordpress.com/2020/09/26/towards-a-formalised-artisanal-and-small-scale-mining-asm-sector-in-zimbabwe-what-to-consider-and-why/

[7] Ibid

[8] https://www.chronicle.co.zw/just-in-government-crafts-s-i-to-register-all-artisanal-miners/

[9] Ibid