Mildred Chiri- Here’s why I Will Miss Her

I took my first deep dive into data from the Auditor General’s reports in 2013. I was working with a colleague on a research project to pry into the goings on at the Marange diamond fields. To say I was shocked is an understatement. Here lay before us a real treasure trove of information and data. The reports we looked at then gave an account of the poor corporate governance and downright brazen corruption at state owned enterprises such as the Zimbabwe Mining Development Corporation (ZMDC). I remember the excitement I had; I pored through those reports with disbelief.

 

AG

Here was a quasi-independent ‘government agency’ doing such a great job exposing rot in state owned enterprise. Auditor General Reports are quite voluminous but surprisingly they are part fun (and of course part infuriating and sad). In the 2014 report on State Enterprises, the auditor general noted that;

The Chairman of the Mining Development Board (Godwills Masimirembwa- former ZANU PF Harare Province Chair and CMED Chair) retired from the Mining Development Board on June 30, 2013 and was paid US$ 261 000 as gratuity for his three and half years service on the board which is in contravention of the best principles of corporate governance which state that non-executive directors shall not receive excessive payments on contract termination. The gratuity payment was also not taxed in contravention of the Income Tax Act [Chapter 23:06] 13th schedule which states that any amount paid or payable to any person by way of gratuity constitutes gross income and should be treated as gross income and taxed under the Pay As You Earn ‘PAYE’ system.

The auditor general then recommended that ZMDC should consider a remuneration policy which is in line with Corporate Governance Practices and should comply with the Income Tax Act. SOEs are given a right of response in the reply and ZMDC in its response said;

The Corporation will adhere to the best principles of Corporate Governance and comply with the Income Tax Act. The Corporation will remit the PAYE on the gratuity in July 2014.

But hold on. Mildred Chiri and team were not satisfied with the response as it meant essentially meant tax-payers would bear the burden. In other words, Godwills Masimirembwa should pay his own PAYE as we all do. ZMDC should not do that for him. The Auditor then noted that;

By paying the PAYE in 2014 the Corporation utilises its resources, of which it should have withheld the PAYE through the system.

This initial research resulted in a report we titled Tracking the Trends: An Analysis of Diamond Mining Tax Contributions’ and also led us to another research project where we were looking at current disclosure practices in Zimbabwe’s mining sector. We sought to assess the extent to which the private sector, government and quasi independent institutions proactively disclose information relating to Zimbabwe’s mining sector.

As part of that research we wrote a bunch of letters to various government departments, Zimstats, Minerals Marketing Corporation of Zimbabwe, ZMDC and others. We also wrote to the Auditor General requesting a couple of reports. We already had most of these reports but were interested in testing the institution’s responsiveness.  And this is when I got newfound respect for that office and the work that Mildred Chiri was leading.

We got a response to our letter within 2 days of having delivered it. I remember getting an email and a call from the OAG’s office acknowledging our letter and requesting that we visit the office for a short meeting and to pick up the requested reports.

To be clear, when we wrote these letters, we were working for a local NGO but we intentionally did not the institutions we were affiliated to and the reasons why we had made our request. The idea was to request for information as ordinary citizens.

When we got to the office, all the reports we had requested had been put together. The courteousness on display and to which we were treated has stuck with me, three years on. We were casually asked why we wanted those reports and we mentioned that we were just interested in the work of the OAG office as citizens and that was good enough.

I distinctly remember that Valentine’s Day (14 February 2015) was around the corner post our meeting with the OAG’s office. We mooted the idea of sending the OAG flowers to show our appreciation of her and her team’s consistently sterling work. For no reason at all, we unfortunately, we did not go ahead with that plan.

What set Mildred Chiri apart, in my eyes, was how unassuming she was. She was not loud or boisterous. I would wager that more have gone through her reports than have heard her speak. She assembled such a great team and managed to keep those ‘civil servants’ motivated. You do not produce such reports year in year out on the back of so little resources without having and leading a great team.

Through the years, I have always pondered though- why didn’t she quit? She surely must have been frustrated. You produce good and factual reports that have clear indications for action; and those that have the authority to address concerns raised equally consistently ignore them. In my imagination, I think she stayed because she felt she had a moral duty to continue exposing rot. Sometimes you just have to do the right thing because it is the right thing.

I do not know the clear circumstances surrounding her departure and even the Finance Minister seems confused and appears to have bungled the dismal or whatever they are calling it. What I am pretty certain of is that her team will miss her, I will miss her and the nation will miss her. She was one of the good ones. Working in the muck but keeping her head high and doing the best she could. People often say we should build institutions and not focus on individuals. True. But individuals are important to. You can have the best institutions and systems and still have that individual- ask the Americans. For once I choose to focus on her, the individual. I choose to celebrate her and hold her up as a hero to my kids. Maybe, soon, I will find a way to give her those flowers she so deserves.

ANALYSIS OF AUDITOR GENERAL 2014 REPORT ON STATE ENTERPRISES: A FOCUS ON MINING STATE ENTERPRISES

 

Mukasiri Sibanda and Gilbert Makore

The 2014 narrative report on state enterprises and parastatals by the Office of the Auditor-General (OAG) reveals continued rot and mismanagement of public resources. This article takes particular interest in the findings pertaining to the Zimbabwe Mining Development Corporation (ZMDC), a state owned enterprise (SOE) advancing state interests in the mining sector.

ZMDC is involved in the extraction of gold, diamonds, graphite, platinum and asbestos among other minerals. It is its involvement in Marange diamond fields, where it owns no less than 50% stake in all the seven companies operating in Marange, which galvanised its position in mineral exploitation. The diamond entities in which ZMDC has an interest include; Mbada Diamonds (50%), Diamond Mining Corporation (50%), Jinan (50%), Marange Resources (100%) and Kusena Diamonds (100%).The only notable exception is Anjin Investments where ZMDC’s shareholding is 10% although the other 40% is said to be held by Government of Zimbabwe.

Minerals are finite sovereign assets and state equity participation warrants close public scrutiny to determine the extent to which the exploitation of the mineral assets is benefitting the citizenry. Scrutinising the role of direct state participation in mining is particularly important in the context of current international discourse on how corporations are bleeding Africa of critical development finance.

An analysis of the 2014 narrative report on state enterprises and parastatals by the OAG, therefore, becomes opportune and imperative as it provides for reflection on how ZMDC is faring on managing the country’s minerals assets. The findings from the OAG clearly show how poorly ZMDC is executing its mandate as a state agent in the exploitation of minerals.

Some of the findings from the report show that;

  • ZMDC’s latest audited group financial statements are for the year ended 31 December 2013. ZMDC is perpetuating its custom of sharing stale financial information. Timely audited financial statements are one of the key tenets of good corporate governance and their undue delay affects the integrity with which the company is managed. It is, however, important to note that Marange Resources (a ZMDC subsidiary) has its 2014 annual audited reports in place.
  • ZMDC has failed to honour statutory obligations to the Zimbabwe Revenue Authority (ZIMRA), pension funds and medical aid schemes. For instance Marange Resources owes statutory obligations amounting to $16,201,622 as at 31 December 2014 broken down as follows; $11,466,864 (royalties) $2,504,615 (depletion fees), $1,162,674 (depletion fees), $758,270 (Minerals Marketing Corporation of Zimbabwe commission), $167,892 (Pay As You Earn- ZIMRA) and $141,365 (National Social Security Authority).
  • Mineral reserves and ores are not known as no meaningful exploration has been done. This carries the risk of poor economic justification for disposing equity stake to investors as the quantity and quality of concerned mineral assets is unknown. In addition, fiscal plans are most likely to be undermined by poor confidence in revenue. This has been the case since the start of formal exploitation of Marange diamonds in 2010.
  • Joint venture partners have been enjoying dividends without honouring their committed capital investments.
Joint Venture Agreed amount (US$) Amount invested (US$) Variance (US$)
Mbada Diamonds (Pvt) Ltd 100,000,000   47,914,009 52,085,991
Jinan (Pvt) Ltd 200,000,000 134,853,491 65,146,509
Diamond Mining Corporation (Pvt) Ltd 1000,000,000   40,971,654 59,028,346
  • Corporate Social Responsibility (CSR) investment amounting to $3,163,091 lacked proof of receipt from beneficiaries and no breakdown of expenditure was availed. Included under CSR; $195,000 (Kimberly Process Certification Scheme Inter sessional meeting on 4-7 June 2013), $165,000 (Diamond mining conference in Angola & Turkey), $100,000 (Diamond expenses for Israel & China- Dewe L). These travel expenses dwarf the $250,000 given to Marange Zimunya Trust. It is unclear how travel to international conferences by senior executives constitutes CSR. It can be inferred that some of the CSR budgets that the companies tout as representing commitment to community social development are essentially personal and or executive expenses.
  • No proof of ownership of investment in Anjin (private) Limited, Jinan (Private) Limited, Gyme Nyame (Private) Limited, Diamond Mining Corporation and Global Platinum Resources (Private) Limited as share certificates could not be availed.
  • The OAG report noted that there is no Environmental Impact Assessment certificate for Marange resources, a ZMDC’s subsidiary. Notably, the state is both a player and a regulator in the mining sector its partiality in enforcing the rule of law shows double standards and dissipates confidence in mineral resource governance.
  • Mbada diamonds posted an operating loss of $49,651,859 in 2013 after making $56,015,647 profit in 2012. The entity’s current liabilities exceeded current assets by $89,916,504 (2013) and $57,383,887 (2012). The report expressed concern on the business’s ability to operate in the foreseeable future.
  • Marange Resources non-executive board members were given a cumulative total of 2,940 litres of fuel, $27,450 each as holiday allowances and an extra security payment of $758,000 over and above the approved remuneration rates. These payments were not taxed under PAYE contravening the Income Tax Act (Chapter 23:06).
  • The Chairman of the Mining Development Board retired from the Board on June 30, 2013 and was paid US$ 261 000 as gratuity for his three and half years service on the board.This is in contravention of corporate governance  principles which state that non-executive directors shall not receive excessive payments on contract termination.
    The gratuity payment was also not taxed in contravention of the Income Tax Act [Chapter 23:06].

Despite national political rhetoric on state resource ownership the OAG report clearly exposes the need to improve management of SOE that are participating in mining.  Where state participation in mining is not fully accounted for, socio-economic transformation leveraged on minerals resources will remain a pipe dream. It is important to note that the OAG 2014 Report is not the first to expose this decay in SOE. There is, therefore, a need for various actors to ensure that the findings from this report are urgently taken forward and considered.

RECOMMENDATIONS

  • The Ministry of Mines and Mining Development must swiftly act to address the rot as minerals are a finite resource. The Ministry must publicly state how it will address the findings from the OAG Report. ZMDC should be compelled to timeously release its financial information to stakeholders particularly given that this is a SOE.
  • The government must disclose Marange diamond joint venture agreements and all mining contracts to enable public oversight on how sovereign assets are being managed. Contract disclosure can act as a deterrent to cases where joint venture partners with government enjoy dividend income without making good of their committed capital injection.
  • The government must explore possibilities of recovering dividend income that was enjoyed by joint venture partners who failed to honour their capital contributions in full. The process of consolidating diamond entities should not reward truant joint venture partners who have failed to contribute required capital to justify their equity position in Marange diamond exploitation
  • The Parliamentary Portfolio Committee on Mines and Energy and the Committee on Public Accounts must ensure that the report findings are urgently considered. Parliament should investigate how the 40% government equity in Anjin Investments is being accounted for.
  • Civil Society through the Publish What You Pay (PWYP) campaign must make use of already existing and credible information reports of the OAG to raise public awareness and aggregate public demand for government accountability to stop the bleeding of public resources. Demand driven accountability can be coalesced through public awareness and understanding centred on abuse and leakages of public resources. An analysis of implications of poor management of public resources vis-á-vis provision of constitutional socio-economic rights would be vital.

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For more information on the OAG Report Findings please get in touch;

Mukasiri Sibanda- (Economic Governance Officer, Zimbabwe Environmental Law Association)- mukasiri@zela.org

Gilbert Makore (Coordinator, Publish What You Pay- Zimbabwe)- gtmakore@gmail.com

Zimbabwe Environmental Law Association

26B Seke Road, Hatfield, Harare

Tel: +263 57360-3

Website: www.zela.org

Mining and the IMF Staff Monitored Program for Zimbabwe

The IMF published the Government of Zimbabwe’s Letter of Intent and the IMF Staff Report for monitoring that began in March and ended 17 April 2015. This is all part of the IMF Staff Monitored Program (SMP) that Zimbabwe voluntarily subjected herself to in 2013. The program is aimed at normalizing the country’s relationship with creditors and mobilize meaningful development finance. Should Zimbabwe meet all the quantitative and structural benchmarks under the IMF SMP this would demonstrate the country’s capacity to repay its debts and could unlock funding from not just the Fund but other agencies.

The government’s commitment to implementing various reforms under the SMP is, therefore, high particularly given the continued challenges in mobilizing development finance and a general choke-hold on the economy. In that regard the SMP becomes an important arena for tracking and monitoring progress with respect to various structural reform commitments.

Of particular interest in the recently published LOI and Staff Report are the points below;

Point 13 in the Staff Report: Authorities expect submitting the amended Mines and Minerals Act, including the fiscal regime for mining, to the Attorney General by end-March, to be submitted to Parliament in the third quarter of 2015. They have already started developing regulations to support the implementation of the amended Act, which would help strengthening the tax regime for the mining sector and improving mining revenue transparency. The authorities have committed to continue publishing the audited financial statements of the Zimbabwe Mining Development Corporation (ZMDC).

Point 23 in the Staff Report: In January 2015, the Indigenisation and Economic Empowerment (IEE) Act was amended to include new roles for the line ministries to approve indigenization plans, issue compliance certificates, and monitor implementation. Line ministries are required to define and publish the parameters for their respective sectors. To further clarify the policy, the authorities plan to publish a simplified summary of the law on the Zimbabwe Investment Authority’s website.

General Comments

It is highly likely that the amendments to the Mines and Minerals Act will be tabled before Parliament before end of 2015 and it is important to monitor and influence this reform process as much as is possible.

There is a commitment to publish the audited financial statements of ZMDC. This is a welcome commitment although its tempered by the fact that the government had (in a letter to the IMF on 3 November 2014) earlier committed to ensuring that the 2013 audited financial statements of ZMDC would be published by the end of 2014. This target was not met.

It is not clear if the new roles for the line Ministries address investor or investor confidence concerns. The IMF Staff report also concedes as much. There remains a lot of confusion in government, the general public and investors with respect to the interpretation and implementation of the Indigenisation and Economic Empowerment Act.

UPDATE ON THE PARLIAMENTARY PORTFOLIO COMMITTEE ON YOUTH, INDIGENIZATION AND ECONOMIC EMPOWERMENT MEETING – 7 MAY 2015

Matter: Oral evidence from the Permanent Secretary for Mines and Mining Development and the Permanent Secretary for Youth, Indigenisation and Economic Empowerment on progress made on the follow-up to the pledges made by mining companies to Marange- Zimunya CSOT.

The Permanent Secretaries did not attend the meeting but they sent in representatives at Directorate level.  These included;

Mr Hawadi- Ministry of Mines

Mr Tizoro- Acting GM- Zimbabwe Mining Development Corporation

Mr Masanga- Ministry of Youth Indigenisation and Economic Empowerment

Mr Mashonganyika- Ministry of Youth Indigenisation and Economic Empowerment

Mr Rangu Nyamurundira- National Indigenisation and Economic Empowerment Board

Mr Ngwarati- Ministry of Youth Indigenisation and Economic Empowerment

BACKGROUND

Five mining companies operating in Marange are alleged to have pledged to donate US$50 million into the Marange Zimunya Community Share Ownership Trust with each company in-putting US$10 million. The Trust was launched on 26 July 2012 but the ‘pledges’ have not been fulfilled and some of the companies in Marange have since stated that they never agreed to the pledges.

President Mugabe launching the Marange Zimunya Trust (photo credit: ZBC)

President Mugabe launching the Marange Zimunya Trust (photo credit: ZBC)

PROCEEDINGS

The Chairperson of the Committee indicated that the Committee wrote to the Ministry of Mines and Mining Development and the Ministry of Youth Indigenisation and economic Empowerment seeking information on the progress that has been made on the ensuring that mining companies that made pledges to the Marange Zimunya Community Trust had been honoured. The Chair also noted that the letters to both Ministries had requested evidence of correspondence between the Ministries and with the mining companies involved with respect to the issue of the Marange Zimunya Community Trust.

Outcome of the Committee Meeting and Oral Evidence from the Ministries

  1. There is no official communication that shows that the companies in Marange made pledges to donate to the CSOTS
  2. The Ministry of Youth Indigenisation and Economic Empowerment states that the pledges were verbal
  3. There is however no evidence (audio/meeting minutes) that shows that the companies made the pledges
  4. There Ministry of Youth Indigenisation and Economic Empowerment argues that the companies committed to the pledges and this is evidenced by the fact that it is the companies that produced the dummy cheques for presentation and not the Ministry
  5. The Ministry of Youth Indigenisation and Economic Empowerment has since written to the mining companies (March 2015) to get their official commitment with respect to the pledges and their plans to make good on the pledges.
  6. Out of all the mining companies, only Jinan has written back. Jinan’s letter back to the Ministry of Youth Indigenisation and Economic Empowerment was just an acknowledgement of receipt of the letter from the Ministry and does not necessarily commit to the ‘ pledges’
  7. ZMDC was not involved in the issue of pledges to the CSOT and was only invited to the launch
  8. There is no evidence of correspondence between the Ministry of Mines and Mining Development and the Ministry of Youth, Indigenisation and Economic Empowerment with respect to the Marange Zimunya Community Share Ownership Trust
  9. ZMDC met with the mining companies on 20 June 2013 and directed the mining companies to make contributions to the Trust (each contributing US$200 000 immediately subsequent to this meeting of June 2013)
  10. Marange Resources remitted US$250 000 and Mbada Diamonds remitted US$200 000 to the CSOT’s bank account
  11. Given the production challenges in Marange, the Ministry of Mines and Mining Development’s position is that these pledges be renegotiated down with a view to payment being spread over a period of time

Further Reading:

President Launches Marange Zimunya Community Trust 

Scam Fears in Community Trusts

Marange Community Share Ownership Trust Under Fire 

Community Share Ownership Trusts in Zimbabwe’s Mining Sector: The Case of Mhondoro-Ngezi 

REPORT BY: PUBLISH WHAT YOU PAY ZIMBABWE

Publish What You Pay Zimbabwe is a coalition of civil society and community based organisations united in their call for a more open and transparent mining sector in Zimbabwe.

DISPUTES EXPOSE POOR MINING AGREEMENTS

By: Mukasiri Sibanda* (Guest Blogger)

In Zimbabwe, Mining Agreements (MAs) or contracts are not publicly available and accessible. This is so despite that constitutionally speaking; minerals are public assets and must be publicly accounted for. Secretive MAs may have harmful tax incentives which may prejudice mineral revenue flows to the public purse and consequently inhibit broad based socio-economic development.

In 2014, Zimbabwe was ranked 156 out of 175 countries on Global Corruption Perception Index released by Transparency International. Given such high levels of corruption in the country, the secrecy surrounding MAs presents opportunities for corrupt public official and corporates to benefit at the expense of the nation. Secretive MAs have been identified as one of the causes for the failure of resource rich countries to leverage on natural resources to attain socio-economic transformation that lifts the poor out of poverty.

The news surrounding the tax dispute between Zimbabwe Platinum Mines (ZIMPLATS) and the Zimbabwe Revenue Authority (ZIMRA) clearly demonstrates the imperative for full disclosure of mining contracts or mining agreements. Zimplats is one of the largest platinum mining companies in Zimbabwe and operates out of Mhondoro-Ngezi. The company is listed on the Johannesburg and Australian Stock Exchanges and is largely owned by Implats. A local weekly newspaper, the Financial Gazette, carried a story on 26 February titled “ZIMPLATS Wins Tax Dispute”.

According to the story, ZIMPLATS entered into a Mining Agreement (MA) with government in 1994 which stipulated that royalty rates will be paid at 2.5% of fair market values. Further, the MA exempted ZIMPLATS on payment of Additional Profit Tax. These fiscal incentives are known as stabilisation clauses which are used as a tool to attract investments in a sector through the insulation of tax incentives from potential future changes in legislation.

ZIMRA argued that the MA agreement clause on stable 2.5% royalty rates was not binding since  requisite Statutory Instrument (SI) was not issued as stipulated by the Income Tax Act (Chapter 23:06) whereas Zimplats argued otherwise (case number 12292/11). Justice Lavender Makoni in favour of Zimplats citing that “the definition of taxes under Income Tax Act (Chapter 21:05) does not include royalties under the Mines and Minerals Act (read with Chapter VII of the Finance Act (Chapter 23:04).

The period under consideration in this dispute is 1 January 2004 to 30 September 2010. ZIMPLATS argued that it had paid royalty rates at 3% and 3.5% which were above the stipulated 2.5% in its MA with government. The overpayment amounted to US$6,057,146.00. It must be noted that royalty fees for platinum have since been further repeatedly revised upwards to 5% on1 January 2011 and 10% on 1 January 2012. Experts estimate that ZIMPLATS may claim up to US$120 million from ZIMRA. It is, however, noteworthy that ZIMRA has been complying with the reviewed royalty rates and has not demanded restitution as Justice Lavender Makoni noted in her judgement.

On another separate note the dispute between ZIMRA and ZIMPLATS on Additional Profit Tax (APT) payment amounted to $50.4 million from 2002 to 2011.

Royalties

These stabilisation clauses pertaining to flat royalty rates of 2.5% and the waiver of APT when added up shows that the public purse is at risk of losing over $176million. This becomes glaring when one considers the 2011 national budget statement which lamented poor royalty revenues despite booming mineral prices.

It is interesting to note that the MA that ZIMPLATS had with government was concluded in 1994. During this period, agriculture and manufacturing were the mainstay sectors of Zimbabwe’s economic growth. This has since changed as mining is now the lead economic sector after surpassing agriculture and manufacturing based on its contribution to both the Gross Domestic Product (GDP) and export earnings.

The country’s 5 year (2013-2018) economic blueprint, the Zimbabwe Agenda for Sustainable Socio Economic Transformation (ZimAsset) is anchored on judicious exploitation of mineral assets. Yet MAs that were entered into over 2 decades ago are likely to encumber whatever plans are in place of fully capturing mineral resource rents and fully beneficiating the country’s mineral assets. These unbeneficial tax incentives should be put in the context of the fact that mineral resources are wasting assets that cannot be recovered once exploited. In addition, the failure to judiciously exploit the country’s mineral resources means that treasury is starved of much needed revenue and this has the knock-on effect of stifling much needed investments in creating social safety nets to ameliorate the plight of many poor Zimbabweans.

Reviewing of MAs to unlock the mining sector’s potential in line with the new economic status of mining is critical to the realisation of ZimAsset’s transformation agenda. MAs should be publicly accessible and it is disheartening to note that the details of the much touted recent $3 billion platinum MA between Russian investors and government are not public. Do we have to wait for disputes to start exposing the malcontents of this MA as is the case with Zimplats? Zimbabwe should follow the lead of countries such as the DRC and Guinea in publishing mining contracts or mining agreements. This helps plug opportunities for corruption and ensures that public officials negotiate in good faith knowing full well that the mining agreements will be subjected to public scrutiny.

* Mukasiri Sibanda is an Economic Governance Officer at the Zimbabwe Environmental Law Association ( a member of Publish What You Pay Zimbabwe)

DECLARATION OF THE 6th ALTERNATIVE MINING INDABA- “MAKING NATURAL RESOURCES WORK FOR THE PEOPLE”

DECLARATION OF THE 6th  ALTERNATIVE MINING INDABA

 “MAKING  NATURAL RESOURCES WORK FOR THE PEOPLE”

 12th  February 2015,  Cape Town, South Africa

We, the representatives  of  over  300  members  of  Civil  Society  Organisations;  Faith  Based Organisations,   Pan-African   Networks  and  Organisations,   Labour   Movements,   media, international  partners  and Community  Based  Organisations,  have met from  9th    –  12th February,  2015,  in Cape Town  to share experiences and deliberate  on the role  and the impacts of extractives on communities, the environment, animal life and society at large. This  marks  the 6th   year  of  the Alternative  Mining  Indaba  (AMI)  which has  grown from  its modest 40 to over 300 international delegates, and in particular from Africa.

Cognisant  of  the failure  to fulfil  the Millennium  Development  Goals  (MDGs)   and the subsequent efforts towards the Sustainable Development Goals (SDGs) and the post-2015 agenda, financing for development should remain a national obligation.

We are convinced that the capitalist system puts profits  above people, and fails to sustain harmonious relations within  society. The failure of African governments to fulfil regional instruments, including the Africa Mining Vision (AMV),  is a demonstration of its weak governance.

We   have  further  noted  the flagrant  violation  of  ethical  and legal  standards  and believe  that without  principled,  just  and effective  regulation  of  the extractive  and related industries, people will remain impoverished.

We are cognisant of trade and investment policies that have had a negative impact on governments’ ability to fulfil its development agenda and lift communities out of poverty. Governments  have an opportunity  –  and  duty –  to ensure  that natural  resources benefit  more  people  more  widely  and that companie s operating  in  their  respective countries are acting according to ethical and legal standards.

We call upon all African governments to commit to rising to the challenge set  forth in our priority  recommendations  and make citizen-centred  decisions about  the investment of natural resources.

  1. Taxation and Illicit Financial Flows (IFFs)

1.1  There  is widespread consensus and  evidence  of  the devastating  impacts  of  Illicit financial flows (IFFs), tax avoidance and tax evasion on Africa’s ability to address its development and poverty challenges.  There  is therefore  an urgent need for African governments, individually and collectively under the leadership of  the AU to step up actions to stop  the bleeding of resources from  the continent. The launch of  the high level  panel  (HLP) report  on IFF  in  Africa led  by  former  president Mr  Thabo  Mbeki provides an opportunity  for  African  governments,  civil  society  and citizens  to join hands   and  push   for  real   transformative   changes  in   the  international   financial architecture. We support the need for a global framework that enables enhanced domestic resource mobilization, clamping down on corporate tax malpractice and putting an end to illicit outflows of resources from  the continent.

1.2 To realise the above, we call on the African Union  (AU) and African governments:

1.2.1   To  establish  and situate  a specific  agency within  the AU  and its  related processes as the leading African institutional space for dealing with  Illicit financial flows and asserting its eminence and legitimacy in relation to other international bodies in order to play  a greater and more active  role  within  the G20  and OECD processes and not consider Africa’s role as passive.

1.2.2  To strengthen the role of regional and continental groupings such as RECs, UNECA   and  ATAF  by    putting  in   place   adequate  institutional   and  political mechanisms   that  ensure a  clear   vision,   roadmap  and  action  plan  for  the implementation  of  key  measures to tackle  illicit  financial  flows.  Such mechanisms must ensure and protect the role for civil society and citizen’s participation.

1.2.3  To  review their   fiscal  policies  domestically  and regionally  and remove tax incentives  that  erodes their   tax  bases and  promotes tax  competition.  African governments should learn from  other regional experiences, where governments are willing and able to tackle IFFs through the use of innovative country specific anti-tax avoidance practices.

1.2.4  To send a clear and firm message to the international community and call for cooperation in stopping IFFs from  Africa. Since this  is not only an Africa problem, finding  a solution  to  these  challenges  requires  international  cooperation  and leadership to support Africa and not undermine the continent’s efforts.

  1. Transparency and Accountability

2.1      We  call  for  the   real-time  disclosure  of  all  project-level  mining-related  permits, licenses,  compliance  reports,  monitoring results  (including  air,  water, waste  and health) and contracts in a public registry available both online and as a hard copy.

2.2      We call for the  public disclosure of all relevant contractual and fiscal terms relevant to  EI   projects  to  allow  critical  interrogation  of  the  timing and  magnitude  of extractive industry revenue flows.

2.3      We  call  for  the   real-time  public  disclosure  of  beneficial  ownership of  Extractive Industries companies, including, those entities providing services via  government contracts and beneficiaries of trusts.

2.4      We  call  on governments  to adopt  whistle  blowing  protection mechanisms  that incentivise those who publicise corruption and  illegal  government and corporate activities.

  1. Environmental rights and community monitoring

3.1      We call on governments to support mining community initiatives in  tracking and assessing multi-national corporation activities and mitigate the social, cultural and environmental impacts of those activities.

3.2      We  call on governments and MNCs  to negotiate with communities as opposed to consulting, since the latter is inadequate and diminishes our real rights  to negotiate the use of  our land  and environment. Consultation  fails  to include  the right  to say NO.

3.3      We  call  for  the adherence  to the international  law  principle  of  Free,  Prior  and Informed  Consent as  a continuous process, rather than a once-off  practice and adequate government investment in environmental compliance and enforcement.

3.4      We  call  on government and MNCs  to accept,  that where mining is unavoidable and   communities are   relocated,    that   communities be   compensated   in accordance with  the real  value of the land, including the value of the mineral resource under the land and pecuniary rights.

3.5      We call for the  rational and just utilisation of the land and the environment and an end to looting and land grabbing for foreign food production, mining and other forms  of  extractives.  Where the  environment  and livelihoods  are degraded  or destroyed, these actions should lend itself to stringent recourse.

  1. Access to Remedy: Litigation and Mining

4.1      We call on government to revoke mining licenses where there is non-compliance to

Social and Labour Plans (SLPs) that have been agreed to.

4.2      We  call  on government to give effect  to the fact  that SLPs  and Environmental Impact Assessments (EIAs) are public documents which should be readily available to the public.

4.3      We call on government to ensure that SLPs are actually and effectively negotiated with   communities and  workers. We   further   call   on  an  inclusive   process  with communities, as it pertains to EIA.

4.4      We call on government to strengthen judicial systems and to provide equal access to justice for mining communities.

4.5      We   call   on  governments   to  provide adequate   resources for   human  rights commissions to investigate; monitor and take action against human rights  abuses in the extractives sector.

4.6      Cognisant  of  the extreme danger of  climate  change to Africa,  where 200  million people are anticipated  to perish this century because of  droughts  and floods, we demand a proper accounting, mitigation and compensation for the  extremely high proportion of Africa’s greenhouse gas emissions that come directly and indirectly from  mining and smelting.

5.2.3  Investigate  what policy  and laws  must be enacted  at both national  and regional  levels which will  encourage cooperative formations  that can help ASM communities to  thrive  together and  ensure safety and  benefits  for  miners  and communities. ASM activities should also be part of  the policy process at grassroots levels.

5.2.4   Legislation  must be  empowering for  ASM  and for  the  communities that depend on it for their livelihoods and must not be  prohibitive especially where no other alternatives are available to communities living in poverty.

5.2.5  Legislation and Policy should ensure that Artisanal  industrial  beneficiation is funded and supported in order to create industrial capacity at local level that can serve as alternatives to mining for communities living in poverty.

  1. Women and Extractives

6.1      We call  on government to ensure the equal  inclusion of women in  all decision- making processes that directly or indirectly affect them.

6.2      We call on government to create adequate platforms for women to organise and that these platforms are protected.

6.3      We  call  on governments  to amend mining  and labour  legislation  to effect  the gendered re-engineering of the workplace and ensure the enforcement of the law; particularly as it relates to women in the workplace.

  1. Mining, Health and Labour

7.1      We  insist  that the extractive  industry  accepts  its  responsibility  for the  health  and safety of mine workers and communities and to compensate those directly and indirectly impacted. This is especially important for those who have suffered from tuberculosis; silicosis and other mining related illnesses.

7.2      We   call   for  the   regulated   development and  implementation   of   sustainable monitoring  systems in  all  mining  operations  throughout  the  African region.  The monitoring systems must be:

7.2.1   linked to production;

7.2.2   implemented and enforced independently from  industry;

7.2.3   capable of adequate monitoring of exposures and health;

7.2.4   Capable of  adequate monitoring on a  global  and societal  basis,  so  as  to monitor the broader effects of mining on communities.

7.3   We call on the Medical Bureau of Occupational Diseases (and other bodies throughout the  region   charged with   the  administration   of   compensation   for occupational  lung  disease) to fulfil  their  statutory  obligations and requirements, including   the  obligation   to  provide  detailed   reports   on  the  exposure  of mineworkers to harmful toxins, which includes data on:

7.3.1   What mineworkers are exposed to;

7.3.2   The levels of exposure; and

7.3.3   How many mineworkers have been exposed.

7.4   We  call  on all  corporations involved  in  mining throughout the  region  to include details of dust monitoring and the mitigation of risk of exposure to dust on their mines in their  due diligence reports.

7.5   We  call  on the AU to harmonise the standards,  regulations,  policies  and practices relating to occupational health and safety regionally.

We  hereby affirm  our commitment to the above  stated  issues  and pledge our on-going support on the same with  unflinching resolve. We are also committed to working together with  governments, corporations, communities and other progressive forces to ensure that these demands are met.

Declared at the 6th  Alternative Mining  Indaba held in Cape Town, South Africa in February

2015  with  participants from:  Angola ,Argentina, Australia, Belgium, Botswana, Cameron, Canada,  Chad, Colombia,  Congo, Democratic  Republic  of  Congo, Ethiopia,  France, Ghana, India, Ivory Coast , Kenya, Lesotho, Madagascar, Malawi, Mozambique, Niger, Nigeria and  Norway,  Republic  of  South  Africa, Senegal  ,  South  Sudan  ,  Swaziland  , Sweden , Switzerland , Tanzania , Togo, Uganda, Zambia, Zimbabwe.

The Alternative Mining  Indaba is supported by  Economic Justice Network of FOCCISA; Oxfam South Africa; Oxfam America; Bench Marks Foundation; Open Society Foundation of South Africa; OSISA; Diakonia; Norwegian Church Aid (NCA)  and Kairos.

  1. Artisanal mining

5.1      We call  upon government to decriminalise artisanal  mining, so  that miners can be trained;  safety  standards  can be maintained  and whole  communities  can be liberated from  the oppression of criminal gangs.

5.2      With  reference  to 5.1,  proactive  measures must be  found  inter  alia  through the formation of a national Commission which will bring the activities of artisanal miners into the mainstream protection and support of the state.

In addition, this national Commission should:

5.2.1   Consider  how  markets  for  the   sale  of  ASM  mined  minerals  and for  the purchase chemicals such as  mercury, can be created to ensure the regulation  of the sector and the protection of human and environmental health.

5.2.2   Pay  special  attention  to  the  intersections where women  are  faced  with violence,  oppression and  exploitation   in  order to  ensure that  protections   and safeguards  are built  into the legislation  which decriminalises  ASM and brings the sector under the protection of the state.

Mining’s alternative summit: Painting a different picture of Africa’s most conflicted industry

REBECCA DAVIS 12 FEB 2015 12:43 (SOUTH AFRICA) THE DAILY MAVERICK

http://www.dailymaverick.co.za/article/2015-02-12-minings-alternative-summit-painting-a-different-picture-of-africas-most-conflicted-industry/#.VORQBfmUdqV

How can you tell the difference between the Mining Indaba and the Alternative Mining Indaba? One trick is to look for people who are actually miners, or who come from mining-affected communities. If there are any around, chances are good that you’re at the Alternative incarnation. Another trick is to ask people if they paid up to R23,000 for a ticket to the event. If the answer is ‘yes’, then they’re at the Mining Indaba. REBECCA DAVIS has been at the other one.

In 2002, a young man called Fortunate Siziba was walking home in Mapanzure, Zimbabwe, at night when he fell into an open, unsecured, un-lit pit previously used for chrome mining. The pit was 17 metres deep. Siziba was left partially blind.

In 2012, nine-year-old Asa Mpofu fell into an open, unsecured, un-lit chrome mining pit in the same area. She drowned.

In neither case was any compensation paid by the chrome mine operators, or even an apology given. The most assistance that Siziba received from the mine operator was to be transported “in the bucket of a front-loader” to a nearby clinic.

Over the course of a few days at the Alternative Mining Indaba, you hear so many of these kinds of stories that it becomes hard to keep track of each individual case. The atmosphere here is a world apart from that in the glitzy exhibition halls of the Cape Town International Convention Centre, just a few kilometres down the road, where the Mining Indaba is taking place. There, well-heeled movers and shakers in the mining industry make deals, talk investment, and compare annual returns.

Here at the Alternative Mining Indaba, people are angry. They are so angry, in fact, that the very first address of the first day cannot be completed without activists demanding the microphone, determined to have their say.

At a march to the Mining Indaba on the summit’s first day, placards summed up the range of issues at stake: “Please leave my land, I am using it for agriculture (I am a widow)”. “Stop polluting our water.” “Africa is not for sale!” “Our mineral resources, our future!” “It’s not development when the environment is being destroyed.” “No to tax dodging!”

This year saw the biggest Alternative Mining Indaba yet, at around 300 delegates. It’s growing every year, and every year those attending seem more passionate, more vocal and angrier.

“These companies are in Cape Town [at the Mining Indaba] to discuss how to exploit the natural resources in Africa and all over the world to benefit a few,” the Economic Justice Network’s Malcolm Damon told the audience on the first day. “They may be 7,000 [delegates]. But we represent the concerns of millions of people whose lives are affected by the extractives industry.”

At points the discourse of the Alternative Mining Indaba appears straightforwardly anti-mining. At one stage, mining is compared to rape: violent, penetrative and non-consensual. But that’s not the message at the core of the summit.

“We are not anti-development,” Southern Africa Green Revolution’s Matthews Hlabane said. “We are anti-development we don’t understand.”

“Development” at all is something of a contested term in these circles – promised by mining companies, yet often failing to materialise in the way governments or communities hope.

Southern African Resource Watch’s Georges Bokundu summed it up most flatly in a presentation on the second day, with regards to the situation in his home country: “Mining copper, gold [and so on] has brought no development to DRC. Only more conflict.”

Part of the problem is how little say communities are generally granted into what mining companies do around them. Mining legislation in South Africa and other countries demands that mining companies produce Social and Labour Plans – SLPs – which should lay out their plans for how they will contribute to socio-economic development around the mine. As the Legal Resources Centre’s Wilmien Wicomb pointed out, however, these are generally kept secret from the communities – who then have no way of knowing whether mining companies are sticking to whatever they promised in order to win their cherished mining rights.

This lack of information also affects community-members concerned about the environmental impact of mines.

Lawyer Gilbert Makore, of the Zimbabwean Environmental Law Association, said that “most communities have never seen an environmental impact assessment report”. Even if they are granted access to such a report, the language is often highly technical, and often in English only. Corruption occurs between some environmental consultants, too, who produce copy-paste reports for different mines. Even when such consultants are not corrupt, Makore said, they can “go in, hold one meeting with a local leader, and then pass that off as community consultation”.

What emerges from the Alternative Mining Indaba is not solely a simplistic picture of mining companies being bad and local communities being good. The failure of African governments to protect the interests of their people is also cast into stark relief.

A man from Kankoyo, in Zambia, requested the microphone on the summit’s second day to give his account of the effects of copper mining on his community. They are neighbours to a major copper mine, and the resulting mining activities have had a “devastating impact” on their environment, he said, claiming that the soil can now only support the growth of mango trees and small plants. Residents complain of respiratory problems.

Houses have developed cracks in the walls ranging in size from relatively small to big enough to allow two people to shake hands. The soil erosion which results from mining leaves the house foundations unsupported, he explained.

In 2012 the community presented their problems to the mining company. “But we were surprised,” he said. They discovered that in terms of the agreement signed with the Zambian government, the mine was exempted from environmental liability.

This is an extreme tale, but there is little doubt that governments do not do enough to ensure that environmental or social contracts are stringently adhered to by mining companies.

The LRC’s Wicomb pointed out that erstwhile South African mining minister Susan Shabangu was receiving annual reports from Lonmin, was aware that the mine was failing to live up to its socio-economic obligations in the Marikana area, and took no action for a long time.

Unsurprisingly, the shadow of the Marikana Massacre continues to hang over the Alternative Mining Indaba.

The Bench Marks Foundation’s Hassen Lorgat said that there was a tendency among certain conservative media pundits, government and corporations to see what happened at Marikana as an “aberration” – an unpredictable event spawned by union conflict – to avoid discussing ”corporate neglect of workers, abuse of power and privilege of exploiting our mineral resources”.

In Lonmin’s own 2011 Annual Report, Lorgat pointed out, they had already identified risks including “poor community relations due to internal and external factors that could result in civil unrest”.

What you hear at the Alternative Mining Indaba disrupts a great many seemingly black-and-white media narratives. One is about the zama-zama, or illegal miners, who are continuously vilified and criminalized. Mention of the zama-zama has recurred throughout the summit in tones of outrage or concern about their criminalisation – as if “legitimate” mining activity can only be undertaken by European and North American mining corporations. One delegate summed up what seemed to be a widespread sentiment: It’s like when Europeans kill endangered animals and they call it hunting, but when Africans do it they call it poaching.

The “n” word – “nationalisation” – is one that has cropped up relatively infrequently in discussions, superseded by basic concerns for the environment and human rights, advice on how to litigate against mining houses, and so on. But Action Aid’s Brian Kagoro sounded a note of caution at the summit’s opening.

“We risk here, as the elite of civil society – civilocracy – becoming irrelevant,” Kagoro said, in the face of an “emerging radical critique” – exemplified by political movements like the Economic Freedom Fighters.

“If you want mining to carry on, in just a bit more humane way [than previously], there will be another Alternative Mining Indaba happening in the streets.”