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NATIONAL ASSEMBLY HANSARD 08 MARCH 2018 VOL44 NO 45

PARLIAMENT OF ZIMBABWE

Thursday, 8th March, 2018

The National Assembly met at a Quarter-past Two o’clock p. m.

PRAYERS

(THE HON. DEPUTY SPEAKER in the Chair)

MOTION

BUSINESS OF THE HOUSE

          THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): I move that Order of the Day, Number 1on today’s Order Paper, be stood over until Order of the Day, Number 2 has been disposed of.

          Motion put and agreed to.

ANNOUNCEMENT BY THE HON. DEPUTY SPEAKER

VISITORS IN THE SPEAKER’S GALLERY

THE HON. DEPUTY SPEAKER: I have to acknowledge the presence in the Speaker’s Gallery of students and teachers from Cornerstone Secondary School in Harare. You are most welcome - [HON. MEMBERS: Hear, hear.] –

CONSIDERATION STAGE

PUBLIC ENTITIES CORPORATE GOVERNANCE BILL [H.B. 5A, 2017]

           Second Order read: Consideration Stage: Public Entities Corporate Governance Bill [H. B. 5A, 2017].

           Amendments to Clauses 2, 12, 14, 17, 20, 24, 25, 40 and 45 put and agreed to.

          Bill as amended, adopted.

          Third Reading: With leave, forthwith.

THIRD READING

PUBLIC ENTITIES CORPORATE GOVERNANCE BILL [H. B. 5A, 2017]

          THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI) on behalf of THE MINISTER OF FINANCE AND ECONOMIC DEVELOPMENT (HON. CHINAMASA): I move that the Bill be read the third time.

          Motion put and agreed to.

          Bill read the third time.

SECOND READING

MINES AND MINERALS AMENDMENT BILL [H. B. 19, 2015]

First Order read: Second Reading: Mines and Minerals Amendment Bill [H. B. 19, 2015].

THE MINISTER OF MINES AND MINING DEVELOPMENT (HON. CHITANDO): I move that the Mines and Minerals Amendment Bill be presented for its second reading.  This Bill intends to decongest the Mines and Minerals Act by repealing some of the sections with the aim of the provisions being inserted in the Mining General Regulations.  The Bill also intends to establish and provide for the administration of a computerised cadastre system.

Madam Speaker, the Mines and Minerals Act was promulgated in 1961 and was last amended in 1996.  The amendment of 1996 was only to insert provisions on special mining lease.  There is need to decongest the Mines and Minerals Act so that clauses which need constant amendment are embedded in the Mining General Regulations. 

The provision in the amended Mines and Minerals Act will facilitate greater participation by indigenous Zimbabweans in the mining sector. There is also need to enhance environmental protection provisions of the Act and encourage environmental responsibility in prospecting exploration and mining which is quite important. 

Government policy is to promote beneficiation in all areas of the economy.  Mining is indeed one of the sectors which in some cases is leading as far as beneficiation of some of the minerals is concerned. The amendments will promote beneficiation of minerals and mineral bearing products in Zimbabwe.

          Madam Speaker, disputes are rampant in the mining sector and therefore hindering growth, production and smooth operations.  The amendment will provide for a strong and efficient decision making and dispute resolution mechanism.  Disputes between farmers and miners are some of the impediments for growth in the mining sector.  There will be minimised land use conflict with respect to prospecting, exploration, mining and farming.  The use of a manual system is hindering the development of the mining sector.  The proposed computerised mining cadastre system will boost investor confidence through the improved title management in the sector.  The growth of the mining sector is anchored on intensive exploration programmes which are critical for the discovering of mineral deposits and generation of geo-scientific data that can be used in various land use planning processes.

          I will now proceed, Madam Speaker, to the principles of the Mines and Minerals Amendment Bill.  The first is the establishment of a computerised mining cadastral system.  The Mines and Minerals Amendment Bill seeks to repeal all sections to approved prospectors.  Further, it shall establish the computerised mining cadastral system and provide for new methods of registration of blocks of mining claims which will be computerised.  The provisions of the current Mines and Minerals Act on maximum hectares of blocks to be pegged shall, to a larger extent, remain unchanged.

          The next proviso is to provide for strategic minerals.  The Bill also seeks to authorize the Minister responsible for mines to declare any minerals strategic through regulations.

          The next proviso is to reconstitute the Mining Affairs Board.  The board shall be chaired by the Secretary of Mines and Mining Development.  It shall consist of all principle directors in the Ministry.  The Director Geological Survey and two other officials of the Ministry will be members of the Board.  Six members of the board will be appointed from the Chamber of Mines of Zimbabwe, Small Scale Miners Association, Farmers’ Associations, the Institute of Chartered Accountants and one professional from any professional field relevant to the needs of the Board. 

          The next proviso is the establishment of a new licensing system.  The Bill seeks to repeal sections pertaining to prospecting licences.  It intends to substitute the repealed provisions with an exclusive prospecting licence, its form, duration, terms and conditions.  The rights conferred by an exclusive prospecting licence will substitute rights conferred by a prospecting licence.  The pegging process will be done by mining surveyors.  This will be a substitution for approved prospectors commonly known as peggers.

          The next proviso is to provide for mining title and mining rights.  The Bill seeks to define mining title as licences for prospecting and mining rights as licences for mining.  It also seeks to differentiate mining rights and mining title.

          The next proviso is to setup the office of the mining cadestra registrar.  A new provision for setting up the office of the cadestra registrar has been inserted in the Bill.  This office will be responsible for registration of mining titles and mining rights. 

          The next proviso, Madam Speaker, is to provide for protection certificates by a mining lease holder.  The Bill seeks to provide for protection certificates for mining leases in the appeal process. 

          The next proviso is to provide for environmental protection.  The Bill seeks to provide for environmental protection through the establishment of a safety and health rehabilitation fund which will be paid by miners for rehabilitation after mine closure or abandonment of mining locations.

          The next proviso is to provide for any appeal procedure after forfeiture.  The Bill seeks to provide for an opportunity for representations after forfeiture by those who are affected.

          The next proviso is to provide for beneficiation of minerals.  The Bill seeks to provide for beneficiation provisions.  Currently the Act only provides for beneficiation plants upon application by an interested party to declare their plant as beneficiation plant.  It does not compel anyone to beneficiate their minerals.  The proposed provisions will compel beneficiation plant owners to be registered with the Ministry.

          The next proviso is to provide for listing in the Zimbabwe Securities Exchange.  The Bill seeks to provide that no mining right or title shall be granted or issued to a public company unless a majority of its shares are listed on a securities exchange in Zimbabwe.  Any company that requires a mining right or title which is listed on foreign exchange outside Zimbabwe, shall be obliged to notify the Minister of such listing and 85% of funds raised from such listing shall be used solely for the development of the mining rights and title in Zimbabwe.

          The next proviso is to provide for sections of evidence and presumptions.  The Bill seeks to provide for circumstances where there is variance between the map position of a mining claim and the ground position.  The proposed presumptions are that a document to be a copy of a map prepared in terms of Section 20 or part of such a map and purported to be certified as such by the cadastre registrar shall be admissible in any legal proceedings on its production by any person as a prima facie proof of the boundaries of the area and any claims depicted thereon.  Where a question arises as to the boundaries of any claim, block, location or other pegged area and there is conflict between the position of a peg in or on the ground and the position on the map or plan by the cadastre registrar.  Then for the purposes of any legal proceedings where the position of the peg was determined by means of a global positioning system, the position as indicated on the map or plan shall be regarded as correct unless the contrary is shown.

          The next proviso is to provide for the prohibitation of child labour.  The Bill seeks to cater for prohibitation against child labour in mining locations.  This section compels miners to comply with the labour laws of Zimbabwe.  This section also provides for the penalty of cancellation of license when one engages in the employment of minor children.

          The next section is to provide for sections relating to exposure to radiation.  This provision is meant to align the Mines and Minerals Act with the Radiation Act at the same time protecting the employees from harm.

          The next section is to provide for transitional savings provisions.  This Bill seeks to provide savings provisions.  The last in the Second Schedule is to provide for conditions for riverbed mining and penalties associated thereof.

          Madam Speaker, there was a meeting between the Parliamentary Portfolio Committee on Mines and Energy together with the Ministry of Mines and Mining Development on the 19th and 20th January to go through these amendments.  The Ministry of Mines and Mining Development had discussions with the Committee and I am sure the Committee will be giving some of the outcomes from that discussion.

          In conclusion, Madam Speaker, the country is expected to fully benefit from the amendment of the Mines and Minerals Act in terms of boosting investor confidence and growth of the mining industry and the economy at large. 

          It has also to be noted that by amending the current Mines and Minerals Act, the mining disputes will be reduced as there is provision of how this will be held in a speedier manner.  The amendment also facilitates proper administration of a computerized mining cadastral system which, of course, is not only in line with the ease of doing business in Zimbabwe but makes the administration much more efficient.

          HON. MLISWA: Thank you Madam Speaker for giving me this opportunity to debate on this very important Mines and Minerals Amendment Bill which has been outstanding for a very long time.  Let me take this opportunity to thank the Minister who certainly has hit the ground sprinting, not running - because it has been outstanding for a long time.  We could not get it before the House as a result of the old dispensation which was there.  The Minister has managed to work round the clock and it now gets us to this point. 

          Introduction

The principal Act governing the mining industry was first crafted in 1961 and amendments to the law were last effected in 1996.  Consequently, there have been a number of issues that have arisen in the mining sector, that need to be addressed through policy reforms.  In analysing the amending bill, the Committee was guided by a number of imperatives which include: the investment environment, fiscal mining regime, new administrative measures,   balancing of interests of persons involved or affected by mining operations and corporate governance issues. The mining industry is currently the backbone of the economy and has been a leader in export earnings in the past decade.  In order to optimise production, the mining industry requires US$3,9 billion in the next five years and this growth needs to be supported by a strong legal and policy framework.  Based on the 2015 survey by an international mining research centre, the Fraser institute, Zimbabwe was listed at the bottom ten of the least attractive jurisdictions for investment.  This was attributed to unclear and inconsistent policies pertaining to the mining industry.  To this end, the Committee of Mines and Energy shall outline areas that need to be addressed in order to spur sustainable and positive growth by the mining industry.

Methodology

In 2016, the Committee had an opportunity to conduct public hearings in all the 10 provinces of the country, in line section 141 (b) of the Constitution.  The consultations were attended by a wide spectrum of people who included:  large-scale and small-scale miners, civil society, mining communities and ordinary citizens. A written submission was received from the Women and Law in Southern Africa Research and Education Trust, giving a gender analysis of the Bill. The Committee also had an opportunity to interact with the former Minister Hon W. Chidhakwa and officials from the Mines and Mining development. From 2016 up to January 2018, the bill was not enacted into law, due to a number of contentious issues that were identified by the portfolio Committee. In order to address these areas, in January 2018, the Committee held further consultations with the new Minister, Hon W. Chitando and officials from the Ministry of Mines and Mining Development as well as other players in the mining industry that included; Chamber of Mines, Zimbabwe Miners Federations, Minerals Marketing Corporation of Zimbabwe, Fidelity Printers and Refiners and mining community representative.

Findings

Following the consultation process of January 2018, between the portfolio Committee on Mines and Energy and key players in the mining industry, these were its findings:

1                                  Strategic Minerals

The first draft bill under section 5 identified and listed 19 minerals as strategic to the economic, social, security and industrial development of the country.  During the 2016 public consultations concerns were raised that the bill excluded minerals such as gold and diamonds which were key to the growth of the country’s economy.  After further consultations in January 2018, the Ministry of Mines agreed to amend these provisions by:

        i.            Removing the list of strategic minerals;

     ii.            By inserting a clause which outlines that from time to time the Minister of Mines will determine the country’s strategic minerals.  This was borrowed from the principal law governing the mining industry in South Africa.

2                   Mining Affairs Board

Section 6 of the Bill, seeks to amend section 7 of the Act which touches on the composition of the Mining Affairs Board (MAB).  The re-constitution of the Board was overdue, given that certain positions in government such as deputy secretary or under-secretary were no longer in existence.  Furthermore, following the land reform process of 2000, new farming associations emerged to compete with the Commercial Farmers Union which unquestionably had a seat on the Board.  Hence reconstituting the Board is a welcome development given its critical role in ensuring good governance in the issuance and management of mining titles.    However, the proposed Board has a number of shortcomings which were raised by the public and the Committee concurs with these observations. These include:

       i.            Imbalance between government officials and non-government officials:  The section clearly outlines that there would be 6 non-government officials, however the number of government representatives is unclear.  The provision merely states that all principal directors from the Ministry shall sit on the board.  Nobody knows how many principal directors are in the Ministry or whether they all add value to the operations of the Board.  Secondly the provision allows for the appointment of two other officials from the Ministry chosen at the discretion of the Minister.  It is not clear what knowledge or skills these persons will bring or why it is difficult for the Minister to clearly identify these persons, given that he or she is overally in charge of the Ministry. In short, the composition of the Board, in term of numbers is unclear and it appears there will be more government officials whose expertise is unknown.   These issues need to be resolved to avoid a bloated board, which would be costly.    The composition of the board will have an impact on issues to do with corporate governance. Therefore this needs to be addressed in order to build confidence in the mining industry and for investment.

    ii.            Gender Parity:  Subsection 1 (e) of the provision highlights that the Minister shall endeavour to ensure there is gender parity in the nomination of the six non-government officials.  The same rule is not being applied to government officials.  This matter needs to be addressed in line with section 17 (b) (ii) of the Constitution which calls on the State to ensure “women constitute at least half the membership of all Commissions and other elective and appointed governmental bodies established by or under this Constitution or any Act of Parliament”.   While the Committee is conscious that the mining industry is male dominated, the Ministry should be seen to be promoting gender parity.

 iii.            Inclusion of New Members and Expansion of the Board: There were calls by the public that the Board should be expanded to include representatives from the youth, civil society, mining communities, the academia such as the Institute of Mining Research and artisanal miners.  Secondly, the following associations requested for more seats on the Board: representatives from the Chamber of Mines to be increased to 5 and members from association of small-scale miners to be increased to 2. The Committee will urge the Minister to consider the practicality of these requests.  The position of the Committee is that there should be balance on the board between the policymaker and the producers or those affected by mining operations.

 iv.            Quorum of the Board:  The Bill is silent on the quorum. The provision merely states that the quorum at any of the Board’s meeting shall be fixed by the Board.  There is danger that a quorum may comprise merely of government officials and this will be equivalent to having a heads of department meeting at the Ministry.  Safeguards need to be put in place to ensure that the quorum reflects the diversity of the composition of the Board.

    v.            Procedure of Board: The provision that the Board shall meet at least once every two months is a welcome development.  History has records of periods that the Board went without a meeting whilst many issues remained unresolved.

 vi.            Independence of the Board:  During the public hearings it clearly emerged that the majority of views did not want the Secretary of Mines to chair this Board.  The fear was that Permanent Secretary will undertake multiple roles: that of advisory, of oversight and implementation.  The views of the people were that this should be an independent Board which makes recommendations which can either be adopted or rejected by the Secretary.   This issue was very emotive and the Committee observed this was caused by negative public perceptions on the incumbent office holder, Prof. Gudyanga at the time. During the January 2018 consultative meeting, the Committee decided to shelve its position on this matter and referred it to the Attorney General, in light to the Public Entities Bill gazetted in 2017, which has a provision barring Permanent Secretaries from chairing any boards.

3                   Computerised Cadastre of Mining Rights and Title

The cadastre system is defined in the bill as “the system for manual or electronic management and recording of processes that create mining rights and titles”.  In essence, there will be a dual system of recording mining titles.  This is a welcome development, because for a long time the Ministry had been relying on a manual system which created voluminous papers and documents.  The computerised system will go a long way in improving the ease of doing business in the mining sector and will play a critical role in attracting investors.  The benefits of the cadastre system include:

        i.            Speedy recording and retrieval of mining information;

     ii.            Improves accuracy of locating mining properties;

  iii.            Eliminates miner to miner disputes associated with shifting of beacons and pegs;

   iv.            It creates a platform for comparison and enables competition between Zimbabwe and countries in the region, the continent and beyond. 

The Committee would urge the Ministry of Finance to provide adequate financial resources for the establishment of this system in the forthcoming financial year.

However, several concerns were raised during public consultations.  These included:

          i.            The Secretary of Mines should not hold the post of the Cadastre Registrar. Apart from the day-to-day responsibilities as the accounting officer in the Ministry of Mines, the bill accords the Secretary another important responsibility of chairing the Mining Affairs Board. Concern was raised that the Secretary of Mines is being asked to take on too many responsibilities. In terms of good corporate governance, it is the Committee’s position that it would be inappropriate to accord the Secretary with too many responsibilities. During the January 2018, consultation meeting, the Ministry agreed to amend this provision and to delegate the responsibilities to someone else other than the Secretary of Mines.

       ii.            The Cadastre System is highly technical, hence it should be managed by someone with competencies in information communication technology.

    iii.            There is need for the bill to stipulate the type of map to be used for the issuance of title coordinates, such as Arc 1950 UTM.  The benefit is that users will apply the same data for identification of coordinates.

On the interpretation of mining title, the Committee concurs with the mining producers that there is need for further dialogue in order to simplify the mining titles used in the country.  In law of property, the moment a person acquires title, this has rights attached to it.  In the bill there is separation of mining title and mining rights.  This is unnecessary. Recommendations were made that we could have mining titles such as ‘mining claims for small workings’, ‘mining leases for large scale’, among others.

4       Exclusive Exploration Licence and Exclusive Prospective Licence

The clauses on the issuance of exclusive exploration and exclusive prospective licences are progressive, in that they give exclusivity of title.  However there are certain areas that need improvement or clarity such as:

       i.            Terms of extension and renewal of license:  a prospecting license is valid for 12 months, whereas an exploration licence is valid for 3 years and may be extended for a further period not exceeding three years.  Concerns were raised by the mining industry that time restrictions can be retrogressive in the exploration of minerals.  An example was cited of Murowa Diamonds which took more than 10 years of exploration before production began.  Each mineral and project is unique, hence time restrictions can hinder full development of a mining project.  The mining producers outlined that in order to promote speedy exploration for minerals, other countries have developed an escalating fee structure where delays result in charging of a premium price.  This will greatly benefit Treasury than incompletion of projects constrained by time factor.

    ii.            Pegging of Claims in Exclusive Exploration Reservation:  Section 96 (4) of the Bill highlights that the Minister may authorise pegging of claims in an exclusive exploration licence for a mineral other than the minerals for which the licensee is authorised.  During public consultations, the Committee observed that this was a very contentious issue between small and large scale producers.  There was a plea from small-scale producers, particularly the youth to be accommodated in reserved areas.  Artisanal and small-scale mining is a critical sector towards poverty reduction and employment creation in most resource-rich countries in Africa.

On the other hand large-scale producers were vehemently opposed to the idea on the grounds that it will diminish security of mining title and will create administrative challenges. A good example is Chiyadzwa. Was it not better for the artisanal miners to continue than for Government to take over?  When government took over, there was no more money in Manicaland. There was a cash crisis in the country and when the artisanal miners were there, everything was available.  With gold, these miners contributed to income generation in the country. Such a model should be replicated when it comes to diamond mining. 

The purpose of section 96 is explained in the 2016 Mid-Year Fiscal Policy Review Statement, which states that the policy on reservation on mining areas would be reviewed to allow for new investment opportunities.   The Committee supports the position taken by the Executive of accommodating small-scale miners and other investors to explore or even mine in reserved areas.  This has worked well in countries such as South Africa, where different mineral producers co-exist on one mining location.  However, the Committee would like to encourage more dialogue between the Ministry and the primary producers to dispel the notion that government is expropriating mining workings or imposing its decision irrationally.

 iii.            Monitoring and Regulation of Exploration Activities: On section 101 of the bill, concern was raised by the producers that it will not be possible to produce a work plan every six months during the exploration phase.  The Committee concurs with the suggestion by producers that the licensee should produce an annual work plan and then report on progress made every six months.  It reduces delays in carrying out a project due to bureaucracy.

  iv.            Requirements for Application of a licence:   In order to apply for either a prospecting or exploration license, the Bill highlights that the Registrar or Board will consider whether a person is ‘fit and proper’ to hold such a license.  The Ministry of Mines, agreed at the January 2018 meeting to remove this clause.

     v.            Abandonment of Exclusive Exploration Reservation: Section 106 provides conditions under which reserved ground for exclusive exploration can be abandoned.  The large scale producers requested that the restriction in section 106 (2)(b) should be removed, particularly were abandonment will result in the ground being divided into two separate portions. The argument by the Chamber of Mines is that it is possible, given an initial size of 65 000 hectares that discoveries can be located in two distinct areas.  A request was made to allow for retention of the said two areas.  The Committee concurs with the request by large scale producers, unless if the Ministry has a compelling reason to deny the request.

 

4                                  Farmer-Miner Relations

There is a lot of tension between farmers and miners when minerals have been discovered on productive agricultural land.  The Committee observed the following:

                   i.            Conflicts between farmers and miners, particularly small-scale and artisanal miners was prevalent in various parts of the country. One participant during public consultations described the relationship between a farmer and miner like that of‘mombe ne bere’, it’s a win or lose type of relationship.

                ii.             Miners are accused of being arrogant and do not respect the rights of farmers.  Threats and intimidation are used to force farmers to cede their land rights.

             iii.            The most vulnerable farmers are those with offer letters, 99 year lease or permits.  The assumption is that such farmers do not have any title to the land, hence should be re-located in the event that a mineral is discovered.

However, the Committee would like to commend the Executive for progressive provisions in the Bill that seek to balance the interests of the farmer and the miner.  Such provisions include:

       i.            Section 65 protects the farmers with a 99 year lease or a permit.  A miner is compelled by law to get the consent of the farmer before prospecting.  The provision also outlines the distances that should be observed for prospecting from areas such as homestead, dip tanks, on land under cultivation among others.

    ii.            In the event that the discovery encroaches into the restricted areas such as farmhouse, agricultural land, the farmer can be bought out through the court process, where compensation will be determined on factors such as the value of improvements on the land, the possible loss of profits over a period of three years and so on. 

 iii.            During public consultations, the sentiments from farmers were that miners should be compelled into a joint venture with the farmer.  However, the Bill protects the farmer from such greedy miners, in section 65 (3), where it states, that “where any consent …..is unreasonably withheld the Minister may authorise any person to exercise his or her rights…”  Furthermore if the farmer refuses to grant the miner permission and then decides to apply for permission to mine, the bill prohibits such behaviour.  Section 65 (2) says that “if the holder of any private land or occupier of communal land, holder of a 99 year lease or permit withholds consent to the exercise of any mining right or title…….such holder or occupier may not apply for a like mining right or title over the ground in respect of which such consent was withheld…”

Whilst provisions of the farmer-miner relationship are progressive and seek to balance the interests of both groups of people, there is need for the Ministry to formalise most artisanal and small-scale miners, so that they respect the rights of farmers, public property and institutions such as roads, schools and dip tanks and so on.

5                                     Mining Leases

Part 8 of the Bill touches on mining leases.  One of the contentious issues is that of mining rights of a lessee, outlined in section 143.  The bill highlights that every lessee has an exclusive right to any ore or deposit of any mineral “except energy minerals, precious stones and declared strategic minerals which may be discovered within the mining lease…”    The concern is the government will have control over the exploitation of strategic minerals and arguments were raised by the industry that such restrictions are inconsistent with best international practice.  The acceptable approach would be for lessee or investor to be given the first right of refusal to exploit any discovery.   

The second area of concern by the industry, was found in section 145 where a lessee has to submit to the Board a written programme which outlines the development work which he or she intends to undertake on the mining lease during the forthcoming 12 month period.  The argument of the industry was that given that mining leases are for 25 years and subject to renewal, annual management will become a cumbersome process for both government and the miners.  A request was made for the mining plans to be based on a five year cycle and the lease holders would  submit annual reports as outlined in the five year plan.

The third issue of concern pertains to section 153 (1), which deals with the approval of transfer of mining leases.  The provision states that “a mining lease may not be transferred except to a person approved of by the Board, after consultation with the owner of the ground covered by the lease”. The Committee supports the position where transfer of title is based on commercial factors.  The authorization by a regulator and payment of prescribed fees should be adhered to but this provision seems to imply that transfer can be initiated by a third party and the lessee will only be consulted.  The process will be prone to manipulation by the Ministry in that it can influence the transfer process, particularly the person to get the mining lease.

6                                     Fiscal Measures

This section seeks to outline the fiscal measures that will have a bearing on the mining industry once this bill is introduced.  The industry has been complaining that they are overtaxed and the bill seeks to introduce the following charges, fees or levies:

       i.            Safety, Health and Rehabilitation Fund: Section 257 E provides for a Fund to be used for the rehabilitation of environmentally damaged sites.  Concern was raised by mining producers that this Fund was a duplication of the Environmental Fund which is provided for under the Environmental Management Act.  Mines are already contributing to the Environmental Fund and if this new Fund is approved it will lead to multiple schemes for managing the environment.  The Committee supports the position that miners should only contribute to one Fund, either the new one or the one established under the Environmental Management Act.  The Committee also noted with concern that most of the damage to the environment is perpetrated by illegal mining operations, particularly by small-scale and artisanal miners.  Formalisation of this group will have the added advantage of safe and environmentally friendly practices. Following the consultative meeting held in January 2018, the Ministry of Mines agreed to conduct further consultations within government, to ensure there is harmonisation of laws.

    ii.            Payments to Local Authorities: Section 76 in the Bill has not changed from the current position in the Act, which prescribes levies to be paid by miners to local authorities.  The fear by mining producers is on the purpose of this levy, which can lead to duplication of levies provided for in the Rural District Councils Act.  The best approach will be to remove the provision and the regulation should be left to the discretion of the Ministry Local Government. 

 iii.            Royalties: The Bill highlights that the rate of royalty payable in terms of section 244 shall be as fixed in the Schedule …..of the Finance Act”.   The criticism levelled against this provision is that modern mining laws provide the basis upon which royalties are charged, like in the current law.  Mining producers requested for more dialogue with the Ministry in order to come up with a workable formula, which takes into account the maximum caps, fluctuations in international commodity prices among other issues.  The Committee is persuaded to support the position of the mining producers, given that this issue on the rate of royalties has been a contentious subject over the past decade. 

 iv.            Cadastre System, in section 17 the Registrar is empowered to collect a fee for processing applications.  There will also be annual service fees, fees to inspect the Register and any other fees may be charged as prescribed in this Act or regulations.

     v.            Section 103 of the bill highlights that fees for exclusive exploration licence shall be paid in a prescribed manner.  The Bill does not provide the basis upon which the fee is calculated.  This formula should be outlined, to promote stability and predictability.

Following the January 2018 consultative meeting, the Minister of Mines told the delegates that the Minister of Finance had made an undertaking to introduce a consolidated fiscal mining regime, to enable the industry to be productive and to lure investment.

 

7                                     Mineral Beneficiation

Value addition of minerals by resource-rich nations is recognised in the Africa Mining Vision of 2009 and the Zimbabwe Agenda for Sustainable Socio-Economic Transformation (ZimAsset), 2013 to 2018 as playing a critical role in wealth and employment creation.  The Committee would like to commend the Ministry of Mines for fully recognising the importance of value addition through this Bill. In 2012, the Times of India carried a story which stated that “with imports of low-range rough diamonds from Zimbabwe expected to soar, it’s going to rain jobs in Surat, the world’s largest cutting and polishing centre”.  It was anticipated that Zimbabwean diamonds worth aboutUS$1.5 billion were going to create 600 000 in one province of India.

Whilst beneficiation of minerals is a noble idea,the public during consultations expressed reservations on the implementation of value addition policy, given the binding constraints associated with infrastructural services such as roads,power, water and technical skills.

Section 307 (5) of the bill highlights that the Minister shall initiate or prescribe incentives to promote beneficiation in the country.  The Committee would like the Minister to outline these incentives in the Bill, as a way of attracting the investors into the sector.  The Committee was informed by the Minister during the January 2018 consultative meeting, that the incentives offered for beneficiation of minerals were outlined in the Special Economic Zones Act of 2016.  Furthermore more a mineral policy will be developed to guide subsectors such as beneficiation.

Secondly, section 307 (3) is ambiguous.  It states that “any person who intends to beneficiate any mineral mined in Zimbabwe outside Zimbabwe shall only do so upon written authorisation from the Minister”.  This section can imply that a third party who has bought minerals outside the country which were mined in Zimbabwe, would need to seek the consent of the Minister to beneficiate.  This gives extraterritorial powers to the Minister, which is unacceptable.  It would be more acceptable if the obligation is placed on local exporters and not for all and sundry. 

The third area of concern is section 307 (6) which states that the Minister will prescribe regulations on export permit fees payable on unbeneficiatied minerals.  There is a risk of tax duplication on some minerals, which include platinum where 15% is chargeable on unbeneficiated exports.  Some of these taxes are regulated through the VAT Act.  If the bill becomes law, it is important that the provisions in the VAT Act are repealed in order to protect the miners from double jeopardy.

On the definition of terms, the Committee noted with concern that there was inadequate consultation by the Ministry in coming up with a proper definition of ‘beneficiate’.  The definition is restricted to separation of ore into concentrate and gangue.  Other economically valuable forms of beneficiation such washing, cutting and polishing are not mentioned.

8       Localisation of Shareholding and Use of Local Financial Institutions

Section 393A of the Bill highlights that no mining right or title shall be granted to a public company unless the majority of its shares are listed on a securities exchange in Zimbabwe.  Concern was raised that this provision will work against listing on Zimbabwe securities.  Those not listed will not be affected by this provision. 

Secondly, section 393B states that a holder of a mining right has to make use of local financial institutions.  Whilst this is a noble idea, in light of the liquidity crunch that country is currently experiencing, the sentiments from the public were that financial matters and their regulation should be left under the purview of the Reserve Bank of Zimbabwe and the Ministry of Finance.

Thirdly, section 393 provides for notification to the Minister of Mines of any changes in its shareholding within 14 days.  Concern was raised that this provision is not practical, especially for listed companies whose shares are traded daily.  After 14 days such listed companies are likely to report to the Minister daily.

 

9                                     Riverbed Mining

Section 391A of the Bill states that, “no person shall undertake any

mining operations on any riverbed except where such persons are part of a joint venture partnership with government..”  The Bill has restricted riverbed mining to joint venture agreements with the government.  There were divergent views by the public on this matter. Some of the concerns include:

        i.            Source of Livelihood:  riverbed mining is a source of livelihood for many communities and this provision seeks to exclude such group of persons;

     ii.            Environmental damage:  a number of major rivers have suffered extensive damage, hence affecting other sectors that rely on the water bodies such as irrigation farming;

  iii.            Prohibition of Riverbed Mining:  The bill contradicts statutory instrument 92 which prohibits riverbed mining.

   iv.            Joint Venture:  Riverbed mining has been restricted to joint venture agreement between government and another partner. 

The clause on riverbed mining was very emotive during the public hearings and after the January 2018 consultative meeting, the Ministry of Mines agreed to remove this provision. In effect this entails that riverbed mining remains prohibited in terms of SI 92 but the reality on the ground is that the activity is still taking place. The Committee’s position is that there is need to balance the interests of all persons that are dependent on the country’s river systems.  Countries such as China are engaged in riverbed mining without extensive damage to the environment.  

10       Use it or Lose it’ Policy

Section 401 of the Bill relates to the ‘use it or lose it’ policy in that it highlights the reasons behind the cancellation or forfeiture of a mining right.  The reasons include:

       i.            Where a miner has failed to commence mining operations within a reasonable period;

    ii.            The miner has not declared  output within a reasonable period after commencing operations;

 iii.            Where a false return or declaration regarding output from a mining location has been made;

 iv.             Where certain provisions of the Gold Trade Act, the Precious Stones Trade Act and the Minerals Marketing Corporation of Zimbabwe Act have been contravened.

There were number of issues that were raised by the public regarding the ‘use it or lose it’ policy.  Firstly, artisanal and small-scale miners were in support of this policy because it affords them an opportunity to get valuable claims most of which are in the hands of the large-scale producers.  On the other hand, the large scale producers expressed concern that this policy should be applied with caution, given that mining is a long-term business and is capital intensive.  One of the reasons why mines pay protection fees is to secure their future interests.  The other concern raised by large companies was that  the term ‘use it’ should be clearly defined given that there are various activities that occur in mining which are not necessarily linked to production of minerals, such as construction of infrastructure.  At the same time mining companies have five-year plans which are implemented in different phases, hence these plans should be taken into account before a company is forced to surrender part of its ground. 

The Committee observed that the term ‘reasonable period’ need to be specified.  A timeframe should be clearly set out.  Secondly, the Committee welcomes the decision taken by the Ministry of Mines to open new ground that was under reservation to enable artisanal and small-scale miners to acquire claims legally and for others to expand their operations.  However, some of the artisanal and small-scale miners were bitter over the loss of their claims because they were unable to pay statutory fees laid out by the Minister.  The bitterness emanated from the fact that the parent Ministry was paying a deaf ear to their plight which was causing them to be unproductive. However, Government through the Reserve Bank in 2017, introduced a $40 million loan facility to assist small-scale miners.  This facility has had positive impacts on production and deliveries of gold through the formal system.

 

11                      Mining Disputes

Section 344 of the Bill refers to dispute regulation process between miners.  The provision highlights that the Cadastre Registrar will order parties to stop mining activities where one party has lodged a dispute with the Ministry or at the courts.  Furthermore, the provision highlights that the Ministry should endeavour to resolve the dispute within a reasonable period. During the public hearings, the Committee heard that the sector is riddled with many disputes, some of which have been raging for more than five years with no solution in sight.  The causes were attributed to incapacity by the Ministry to resolve the problems, due to shortage of manpower and vehicles to visit the affected mines.  Some of the officials within the Ministry were also accused of bias and nepotism in resolving some of these disputes. Concern was also raised that it will be improper to shut down a large mining company where a dispute has been declared because of the impact it will have on workers, security of machinery and loss suffered to the fiscus.  A suggestion was made that the Ministry should set up an Arbitration Board to assist in resolving these disputes whilst operations continued. 

The Ministry would need to look at the merits and demerits of establishing an Arbitration Board but the real problem is that the Ministry is taking long in finding solutions hence creating anxiety, suspicion and complications over the disputes. Furthermore, it was noted that the long delays in resolving disputes may be deliberate.  In such disputed claims the area was ring-fenced and the police were called in to safeguard the place, but due to failure to resolve the case speedily, the police were also being accused of mining the disputed claims with the assistance of illegal miners.

12                               Recognition of Artisanal and Small-Scale Miners

The Committee noted with concern that the Bill is silent in fully recognising artisanal and small-scale miners.  Section 257 A (1) defines a small-scale miner as ‘a holder of a mining location who is not a large-scale miner’.  This definition is grossly inadequate. Secondly, the Committee is concerned that the operations of this sector have been criminalised.  The Minister of Finance has on numerous occasions verbally announced that artisanal and small-scale miners have been de-criminalised but the Ministry of Mines has not inscribed this on paper.  As a result the sector continues to experience harassment by the police and stigmatisation by the generality of the people. Official and unofficial statistics estimate that there are between 500 thousand to a million people engaged in artisanal and small-scale mining in Zimbabwe.  In the process the country continues to lose millions of dollars each year through smuggling and leakages of minerals.

13                               Conflict of Laws

There are several contradictions that exist between this bill and the Environmental Management Act.  These relate to the riverbed mining and on the establishment of another environmental fund in the bill.  At the January 2018 consultative meeting, the Ministry of Mines agreed to address these conflicting laws and ensuring there is harmonisation of the country’s laws.

14                               Transitional Provisions

There are a number of challenges that will be created following the enactment of this bill.  A request was made that there should be transitional provisions in the bill as it relates to the legal status of mining rights.  The areas of concern include the following:

       i.            Computerised Cadastre System: It is anticipated that there will be changes to mining locations and this may create disputes. Transitional provisions should be laid out in the bill to deal with this matter.

     ii.            Stock Exchange Listing:  Where a mining company has acquired rights under a special mining lease pursuant to the provisions of the current legislation and such entity is a public company that is not listed on the stock exchange as required by section 393 of the Bill, there is need to clarify what the status of the rights of such an entity are.  The concern is whether the company can continue to operate under the current special mining lease which was acquired before the new restriction as regards listing of shares on the local bourse.

15                               Penalties

 Bill provides for excessive penalties that do not match the level of the breach.  These penalties need to be reviewed in order to attract investment and should take into account the socio-economic environment of the country.

       i.            Riverbed Mining:  Section 391 A (2) highlights that any person who undertakes riverbed mining without the observing the provisions of the bill will be imprisoned for a period not less than years and not more than 10 years. Those mostly likely to be affected by this provision are artisanal and small-scale miners who have been engaged in riverbed mining.  Whilst the Committee supports sustainable mining practices, it has to acknowledge that the penalty is too harsh. The Committee’s position is that sentencing should be left to the discretion of the Judiciary.

     ii.            Protection of the Environment: Section 257 D (3) highlights that directors of a mining company will be jointly or severally held liable for any unacceptable negative impacts on the environment.  The Committee supports the recommendation made by the mining industry that the company is the one that should be sued as a legal persona as provided by the Companies Act.  Furthermore, the Companies Act provides for the piercing or lifting of the corporate veil, so there is no need for duplication on the strict liability when it is covered in the law elsewhere. 

  iii.            Use of Financial Institutions:   Section 393B highlights that a holder of a mining right who does not utilise local financial institutions for transactions will be imprisoned for a period not exceeding 20 years. 

16    Mining Contracts

The Bill is silent on the negotiation and performance of State contracts.  The State has negotiated a number of mining contracts which have been prejudicial to the country, for instance the ones that were negotiated in the diamond sector soon after discoveries in Marange.  Section 315 (2) (3) clearly outlines that “An Act of Parliament must provide for the negotiation and performance of the following State contracts – concession of mineral and other rights to ensure transparency, honesty, cost-effectiveness and competitiveness’.  It is important that once the Executive negotiates these contracts, they are brought before Parliament for further scrutiny.  There has been allegations that the country lost about 15 billion dollars’ worth of revenue from the diamond sector, attributed in part to poorly negotiated contracts.

17     Recommendations

Strategic Minerals

1.    The list of strategic minerals should be removed and strategic minerals will be identified by the Ministry from time to time through gazetting of statutory instruments.

Mining Affairs Board

1                   There should be a cap on the number of board members.

2          The expertise of board members should be clearly laid out as this will promote good corporate governance.

3       Representation from mining producers should be increased to a maximum of 2 for small-producers and 4 for large producers.

4       The quorum of the board should be at least 50% membership from both government and non-government officials.

5       Gender parity should be promoted in the composition of the Board in line with section 17 (b) (ii) of the Constitution.

6       The Chairperson of the Board should be determined in light of the Public Entities and Corporate Governance law of 2017.

Cadastre of Mining Rights and Titles

1.    The Secretary of Mines should not be assigned the position of Cadastre Registrar.  It should be given to another person, who will work within the Ministry.

2.    Mining titles should be simplified for the benefit of investors, producers and other key stakeholders.

Exclusive Prospective Licence and Exclusive Exploration Licence

1.    An escalation fee or expenditure structure should be developed to promote speedy exploration of minerals rather prescribe time limits.

2.    More dialogue is needed between the Ministry and the mining industry on the pegging of claims in exclusive exploration reservation, so that there is acceptance by all the affected and interested parties.

3.    Section 20 (4) (c) and 89 (1) (a) which state that an applicant for an exclusive exploration or exclusive prospecting license should be ‘fit and proper’, should be struck off from the bill.  It does not add any value to the process but can be abused to deny certain applicants of a license on flimsy grounds that he or she is not ‘fit or proper’.

4.    Restrictions on abandonment of ground for exploration should be removed and allow interested persons to retain a portion or separate portions of ground.

Fiscal Measures

1       The fee structures should be clear for all applications, this will create stability and predictability in order to attract the much needed investment.

2       The provision on the payment to local authorities, should be removed from the bill and left to the discretion of the Ministry of Local Government.

Mining Leases

1.    The lessee should be given the first right of refusal in the event that he or she discovers strategic minerals.  This will promote investment into the industry.

2.    Transfer of title should be based on commercial reasons, so as to build confidence amongst investors. 

Beneficiation of Minerals

1                   A holistic approach on the beneficiation minerals is required.  The policy should be supported with adequate resources from Treasury and investors, in setting up of infrastructural services, institutions and enablers such as power, water and trained personnel.

Localisation of Shareholding and Usage of Local Financial Institutions

1.    Monetary and fiscal measures on the mining sector should be left to the discretion of the Reserve Bank and the Ministry of Finance respectively.

Riverbed Mining

1.    The Ministry should conduct extensive research and get best practices on riverbed mining in light of both negative and positive impacts of the activity.

‘Use it or Lose It’ Policy

1.    The timeframe in which a person can lose a mining title should be specified.  The term ‘reasonable period’ is vague and maybe open to abuse.

2.    The business plan of large companies should be taken into account before implementation of this policy.

3.    The policy should be implemented in line with the exploration policy of the country.  Once mineral quantities and values are known it enables and empowers investors to make decisions and not hold on to unproductive ground.

Mining Disputes

1.    The Bill should clearly set out the time-frame in which a mining dispute should be resolved, especially if it is being handled by the Ministry.

2.    The Ministry should be adequately resourced with personnel and vehicles to speedily resolve mining disputes.

3.    In the case of large-mining companies, a waiver should be inserted in the Bill before closure of a mine, given the socio-economic impacts of shutting down a large mine.

4.    The Ministry of Mines should consider the possibility of an arbitration process in resolving some these disputes.

Recognition of Artisanal and Small-Scale Miners

1.    The bill should give an adequate definition of artisanal and small-small miners.

2.    Artisanal and small-scale miners should be de-criminalised and this should be clearly laid out in the Bill.

Conflict of Laws

1.    There is need to create harmony between the Environmental Management Act and this Bill on provisions that relate to the protection of the environment.

Penalties

1.    There is need to review downwards some of the penalties.

Mining Contracts

1.    A provision should be included in the Bill which allows for Parliament to scrutinise multi-million dollar contracts entered into by government.

2.    A provision should be inserted in the Bill, in line with section 315 (2) (c) of the Constitution to ensure transparency and accountability in the negotiation of mining contracts.

Conclusion

The Committee would like to commend the Ministry of Mines and Mining Development for its effort to introduce reforms in the mining sector.  These reforms have long been overdue given the criticality of the sector to the growth of the economy. However, the Committee would encourage the Executive to consider some of its recommendations most of which emanated from the public consultations, so as to enact a law which is line with the African Mining Vision of 2009 and is also according to the hopes and aspirations of the citizens of this country.

As such, we have no doubt that the Ministry will certainly consider the public consultations report that we have given them.  Madam Speaker, before I conclude, I would like to say that I spoke without even stuttering.  I want to thank you for giving me this opportunity.

          HON. ZINDI:  Thank you Madam Speaker.  I rise to support the report as presented and also the statement of the Bill as read out by the Minister of Mines.  My areas of concern are and I am going to highlight on the licencing fees, on the issue to do with makorokoza from a general perspective and also on the beneficiation.  I am of the opinion that the beneficiation process should actually be undertaken here in Zimbabwe, perhaps under licenced production which is having to produce under some other company out there other than having to export raw materials and finally, a model which I would suggest in terms of riverbed mining.

          Madam Speaker, on the licencing fees, I would still want to appeal to the Minister to say that if at all the reforms that we are introducing through this Bill are to benefit the population or the majority of Zimbabweans, the mining licencing fees should actually be affordable as opposed to what is or currently obtaining.  What is affordable I am sure; Minister Chitando here would understand exactly what I am alluding to?  I cannot really give a straightforward figure but all that I can say is, comparing with the current obtaining situation, those mining fees should actually be affordable. 

Again Madam Speaker, given the situation on makorokoza, if I may say, I think this term is derogatory.  This term was meant to take away the dignity of the African people because since time immemorial, gold mining was done by us as blacks and upon the arrival of the colonialists, that is when it was taken away from us.  When the white men took over mining particularly in gold; that derogatory approach was then bestowed upon us as blacks or as Africans.  So, since then, we have taken that word from a colonialist point of view to keep on referring to black miners or to the majority who do not have the means of production to extract but as I am saying that since time immemorial this is something that we have been doing.  Each mambo, chief or headman had some kind of a mine somewhere and that was the situation upon the arrival of the white men, historically.  But, the vazungus, when they tookover mining through colonialism, then they relegated us to be makorokoza and we have taken that word to use, accept it and accept that.  So, if we are to introduce any reforms through this Bill, I think it should restore our dignity as Africans that mining and gold mining is ours since time immemorial from our ancestors and our forefathers before colonialism. 

By that I mean, the Government should come up with a model where we should see equipment being provided through some kind of a loan because we have already acknowledged as a system that the makorokozas or the artisanal miners are actually making money and they are actually producing more gold.  So if we have already acknowledged that, if we make available a loan for the small miners or artisanal miners or the ‘makorokozas’ as we call them, we know that they will be in a position to be able to pay off or settle that loan.  So, why do we not take a bold move to buy equipment or to come up with a facility where these artisanal miners will be able to borrow and have the necessary equipment for them to be meaningfully productive and increase their production and deposits of gold with Fidelity Gold Refineries?  We need to take a bold move.  It is not a situation of say perhaps we are guessing that are they going to be able to produce because we have those statistics.  The Minister here Hon. Chitando has acknowledged that the artisanal miners have contributed and meaningfully as well.  So, that is my suggestion through you Madam Speaker.

Then coming to the issue of the miners and the farmer disputes, I would like to suggest that why do we not go for the option where we have a joint venture or a partnership that, whoever would have come on my farm, if there is gold or diamond – the land is mine and I am holding the title which is the 99-year lease.  I have it, so why do I have to be moved or removed from the farm and make way for somebody who has done the prospecting for whatever mineral that he or she wants to mine on my farm.  Let us just go into a partnership so that both parties are happy – we have a wi-win situation because I am also after money.  In one way or the other as I am farming there so why do we not recommend the partnership or the joint venture way?  The famer and the miner – that is my proposal and I hope Hon. Minister, you will take that up.  We should also consider the issue of the farm size.  We need to consider the farm size as the Chairperson was reading out all the provisions in terms of recommendations on what should be followed.  I think the farm size should also be considered in the process. 

          On the issue of riverbed mining, yes, the Chairperson has mentioned the issue of saying that this mining should be undertaken by the Government as a joint venture with an investor.  I would need also to add a third part to that model.  I am adding the youths.  Why do we not organise our youths, the artisanal miners that we have found already mining to be part and parcel of that joint venture of riverbed mining?  Why am I saying so?  I am saying that because this is alluvial gold mining which is not as difficult as the shaft mining where you have to go underground.  This is riverbed mining, why should we have a company from Russia to come and sieve gold along the riverbeds?  I have visited and seen it and it is so simple.  All you need is to have the right equipment.  You need to have your front-end loader, you need to have well, I do not know what they call it but it is a sieve and the water to wash the stones and you come out with your gold – that is basically what you need.  So why would we have somebody fly all the way from Russia?

           I am not saying we should not have investors from Russia but I am saying those should now go for the underground mining.  Then the Government, youths and artisanal miners whom they have found already doing the riverbed mining are the ones to carry on with that and that provision of coming up with a loan facility, let it be accessed by the artisanal miners and the Government itself as a joint venture between the youths and the Government.  Instead of bringing investors to come and do riverbed mining, because it is a much easier way of mining.  The investors should go underground because they have got the money, the resources and equipment – that is my observation and suggestion.  I hope Hon.  Minister, you will take this up.

          On the issue of beneficiation, we already have the policy under ZIM ASSET as a cluster, but I was a bit dumb-founded when I read about the process of having to cut and polish diamonds in Botswana.  Why do we not invite them to set up shop here instead of us taking the diamonds in its raw form all the way to Gaborone?  Why do we not say, you Botswana come set up shop here in Harare or wherever it is or perhaps set up the shop in Manicaland where we are mining the diamond?  Then they come and set up shop there then they do the cutting and polishing instead of us lifting, by plane, rough diamonds and then they are sorted, cut whatever in Botswana.  This is my observation, together with the lithium - the one point whatever deal that, Hon. Minister, you signed in Cape Town. 

          When I was reading, the argument that was now being put across by others, if at all we had gone for under license production, where we would invite whoever is going to buy the lithium at $10.00 per kilogram...

          Hon. Mliswa having passed between the Chair and the Hon. Member speaking.

          THE TEMPORARY SPEAKER (HON. DZIVA):  Order, order Hon. Mliswa, you cannot pass in front of the Hon. Speaker.

          HON. ZINDI:  Whoever we sold the lithium to or we are selling the lithium in its raw form – right?  If they come to set up shop here under licensed production, we would be producing those batteries hee macomrades then we export to that country and that country which that country wants to do when they buy our lithium in its raw form.  Somebody was even arguing to say if we then re-import the processed form of that lithium in the form of a battery for a phone, we will be buying it for not less than $20.00; $25.00 to $30.00 yet we would have exported at $10.00.  So in other words, the issue of saying Africa is there to support the western economies in terms of their economies through resources, we still have to foster that kind of relationship.  So I am proposing that we should have undertaken to do it under licensed production so we then create jobs in this country.  We create employment in this country and it has got a value chain down the line instead of us having to continue to export raw materials.  With these observations, Madam Speaker through you, I hope the Hon. Minister has taken note of my proposals or recommendations.  I thank you. – [HON. MEMBERS: Hear, hear.] –

          THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI):  Madam Speaker, I move that the debate do now adjourn.

          THE TEMPORARY SPEAKER:  Hon. Leader of the House may you please approach the Chair. – [HON. MEMBERS: Inaudible interjections.] -  Alright, Hon. Members, this Bill was a very critical Bill to the economy since the Act has not been reformed since 1961.  So we will get another time so that you will be able to debate this Bill fully.  Hon. Ziyambi, you may continue. 

          THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI):  I had said that already, I move that the debate do now adjourn.

          Motion put and agreed to.

          Debate to resume: Tuesday, 13th March, 2018.       

MOTION

BUSINESS OF THE HOUSE

          THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI):  Madam Speaker, I mover that Orders of the Day, Numbers 3 and 4 be stood over until Order of the Day, Number 5 has been disposed of.

          Motion put and agreed to.

          HON. MLISWA:  On a point of order, Madam Speaker, since today is International Women’s’ Day.  On behalf of all the male Members of Parliament, I would like to wish all the women a happy Women’s’ Day. – [HON. MEMBERS: Hear, hear.] –

          THE TEMPORARY SPEAKER:  Thank you very much.

          HON. MPARIWA:  Thank you Hon. Speaker.  I also want to congratulate Hon. Mliswa for having realised that they are women, mothers, sisters in the House and also on the same note with every woman here a very happy International Women’s’ Day.  We are mothers, sisters and let us show love.  I thank you Hon. Mliswa – [HON. MEMBERS:  Hear, hear.] –

          THE TEMPORARY SPEAKER (HON. DZIVA): Thank you very much Hon. Mliswa but remember to bring some presents next time.

MOTION

RATIFICATION OF THE MARRAKESH AGREEMENT ESTABLISHING THE WTO AGREEMENT

          Fifth Order read: Adjourned debate on motion on the Marrakesh Agreement establishing the WTO Agreement.

          Question again proposed.

          THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): Thank you Madam Speaker.  As you may recall that in October 2017 last year, the then Deputy Minister of Industry and Commerce, Hon. Mabuwa presented the protocol amending the Marrakesh Agreement establishing the World Trade Organisation and in terms of section 327(a) of the Constitution of Zimbabwe Amendment No. 20, Act of 2013, a protocol does not bind Zimbabwe until it has been approved by Parliament.  Zimbabwe is a member of the World Trade Organisation and is expected to ratify the protocol of amendment. 

          After the presentation of the protocol, I therefore, invite the House to consider accepting the protocol, amending the Marrakesh Agreement to allow the trade facilitation agreement to become binding on Zimbabwe.

        Motion that;

         WHEREAS, Section 327 (2) (a) of the Constitution of 

Zimbabwe provides that any convention, treaty or agreement acceded to, concluded or executed by or under the authority of the President with one or more foreign states or governments or international Organisations shall be subject to approval by Parliament;

WHEREAS Zimbabwe is a member State to the World Trade Organisations (WTO) since 5th March 1995.  In December 2013, WTO member states concluded negotiations on a new agreement, the Trade Facilitation Agreement (TFA), at Bali Ministerial Conference;

WHEREAS the Member states adopted a protocol of amendment to insert the new agreement into Annex 1A of the WTO Agreement.  In accordance with Article 10 (3) of the Marrakesh Agreement establishing the WTO Agreement; any new Agreement negotiated will enter into force once two thirds (2/3) of the WTO member states complete the domestication processes and submit Instruments of Acceptance / Ratification.

WHILST Zimbabwe was in the midst of finalizing its internal processes, on the 22nd February 2017, the number of other WTO member states reached the required threshold of two thirds (2/3) instigating the Protocol to enter into force;

AND WHEREAS the Protocol has to pass through Parliament for approval and Presidential assent before the instrument of Acceptance is submitted to the WTO secretariat, Zimbabwe as a member of the WTO is supposed to accept the Protocol of Amendment; 

NOW THEREFORE, in terms of section 327 (2) (a) of the Constitution of Zimbabwe, this House resolves that the aforesaid Protocol be and is hereby approved for acceptance, put and agreed to.

MOTION

BUSINESS OF THE HOUSE

          THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): I move that we revert back to Order No. 4 on today’s Order Paper.

          Motion put and agreed to.

SECOND READING

SECOND READING: ELECTORAL AMENDMENT BILL [H. B. 6, 2017]

          Second Order read: Electoral Amendment Bill [H. B. 6, 2017].

          HON. MARIDADI:  Thank you Madam Speaker for this opportunity to add my voice to this very important debate for this country.  Madam Speaker, allow me to introduce my debate by saying that an election is simply a process that enables the citizen to participate in the political architecture of their nation.  By extension when people get into an election they basically saying this how we want to be governed, they are basically talking about the relationship that exists between the elites and those that are afflicted and underprivileged. 

          Elections are by nature very expensive.  When Zimbabwe goes into this election, the main political parties in this country, those that are represented in this Parliament, ZANU PF and MDC-T, the Zimbabwe Electoral Commission will need no less than half a billion dollars to get into this election.  Half a billion is money which we as Zimbabwe do not have.  We have a budget of below three billion dollars and half a billion dollars for elections is money which we do not have. 

          I will tell you what I am trying to drive to; elections in Africa and in Zimbabwe in particular are a declaration of war between the contesting parties.  We have seen this happening in this country.  That is why year in, year out when we talk about elections we talk about violence.  There is somebody who told us Africans that elections are equivalent to democracy, they are not.  In Zimbabwe Madam Speaker every since 2013 we have had more elections in this country than the United States has had ever since 1960, but can you tell me that there is more democracy in Zimbabwe than there is in the United States, I do not think so. 

          Madam Speaker, why I say elections seem to be a declaration of war in this jurisdiction, I will tell you about a recent development.  A former Member of Parliament who has not left Parliament Ambrose Mutinhiri forms a new political party.  If we then go to State media, they have been bashing Ambrose Mutinhiri as if he has committed a crime but what he has simply done is exercise his right to associate with a political party of his choice.  He has done nothing absolutely wrong but if you look at the State Media, they have gone all out to say things about him.  They have gone out to talk about his role in the liberation struggle that when Commander Nikita Mangena died, he was not there and they have said a lot of things that he is beholden to former President Mugabe, as if it is a crime to be beholden to former President Mugabe; it is not a crime. If Ambrose Mutinhiri wants to join any party, he is able to join any party of his choice because it is his constitutional right to do that.  I might not agree with him because for me, I would have preferred for him to come and join the MDC-T, but it is still his constitutional right to join any party of his choice.

Madam Speaker, why is it that Zimbabwe is perennially in an election mode.  Perennially, Zimbabwe is electioneering.  I remember after the 2013 elections, former President Mugabe went to address some gathering.  The first thing he spoke about was not the economy or social welfare.  He spoke about the need to win the next elections, 2018 elections.  That was soon after the election of 2013 when he started talking about winning the election in 2018.  Why is it that as a country, we are constantly, perennially talking about electioneering?  I can guarantee you that after the 2018 elections, two months after that election, people will be talking about the 2023 elections as if there is nothing to talk about.  The economy is in shambles yet we are going to get into the election. 

We were talking to ZEC this morning.  ZEC have submitted a bid to the Ministry of Justice, Legal and Parliamentary Affairs.  They want $148 million.  The Ministry of Justice, Legal and Parliamentary Affairs has spoken to Treasury and Treasury can only spare $95 million.  Madam Speaker, if $95 million were to be put into social services of this country, it would transform the lives of millions of people, but we are going into an election and putting $95 million which we do not have. 

I will leave that aside, but we must get into an election because people need to elect people to govern them, people that they want.  The Constitution says we must go into an election.  We must not get into an election as a ritual.  This election must be able to produce an outcome that people respect, but the problem we have in Zimbabwe is we are getting into an election as a ritual that must happen every five years.

Madam Speaker, the Constitution talks about a number of things.  It talks about the need for everyone to participate in an election.  Whenever the President, whenever the Minister of Finance and Economic Development is talking about money coming to Zimbabwe, revenue streams, he talks about the diaspora.  That we are going to have so much money coming from the diaspora, this year we expect to have so much money coming from the diaspora, but Madam Speaker, the diaspora is not participating in the suffrage.  What we need is their money, but we do not need their vote.

Before independence, Madam Speaker, this is how the architecture of this country was.  People only participated in elections if they had a certain level of education, I think then it was JC, which is form two or in lieu of education, they must have had some property or some money because the argument was that when you are voting, you are voting to protect something.  People in the diaspora must be allowed to vote.  If they are going to remit $1 billion into this country in a financial year, they must be able to vote because they are protecting the money that they are bringing into this country.  We cannot say we want the diaspora money and yet we do not allow them to vote.  It is a travesty of justice and that must be looked at and it must be enshrined in this Constitution that people in the diaspora must vote and just as much as we want their money, we must also want their vote.  There is this fear of the unknown by the status quo that people in the diaspora will vote for the MDC-T.  I do not know where this came from that people in the diaspora will vote for the opposition – [AN HON. MEMBER:  No one is saying that.] - and if no one says that, then people in the diaspora must be allowed to vote.

Now let me go on to another issue.  When we were talking to ZEC they said Treasury had promised them $95 million and the other money was going to come from traditional partners and funders.  One of the traditional funders they were talking about is UNDP.  We are going to run an election and we call ourselves a sovereign State and yet in that election, we are saying the UNDP must give us money to run that election. 

HON. MATANGIRA:  On a point of order, Madam Speaker.

THE TEMPORARY SPEAKER:  Can you please approach the Chair.

HON. MARIDADI:  Let him expose himself if he wants to do so.

THE TEMPORARY SPEAKER:  Hon. Maridadi, you may continue.

HON. MARIDADI:  Thank you Madam Speaker for that commercial break.  I was talking about $95 million which ZEC has been promised by Treasury because they need $148 million and $95 million has been promised by Treasury and the remainder, they said, is going to come from traditional partners, traditional funders like UNDP and I was saying, we are a sovereign State.  When we get to electioneering, we need to be funded by Europe and the United States of America.  That must be really looked at.

Madam Speaker, I want to go and talk about media.  This election must be free, fair and credible.  There are things in this country which will show that the election is free and fair - the media coverage.  Madam Speaker, what should essentially happen is that when president of party A gets five minutes on television addressing a rally, president of party B must also be able to get five minutes addressing their rally.  I am talking of this in relation to a rally that was held by President of the Opposition, Advocate Chamisa seated here.  He addressed a rally in Chinhoyi for two hours.  I have been watching ZBC ever since Saturday and I have not seen a one minute clip of Adv. Chamisa addressing that rally.  He is President of the biggest opposition party in this country which is represented in this Parliament and yet he does not get coverage on ZBC of which I think is not fair.

Madam Speaker, when we go into elections, it must be such that ZTV must be accessible to all political parties, be it the National Patriotic Front that has just been formed by former President Mugabe, be it whatever party, but most importantly, the two main political parties in this country which are represented in the Parliament which is ZANU-PF and MDC-T must get equal coverage on ZBC.  Madam Speaker, what you then see on television is that an opposition leader will address a rally for one hour and there is something that they say, it is taken out of context.  That 40 seconds is basically put on television and it is repeated to create in the minds of the viewers that look at the opposition leader that you want to vote for. Things are taken out of context and that is what is put on television.  Things that the opposition leader says at a rally that build the nation, they are not given coverage.  Madam Speaker, I think that is one thing that this Electoral Amendment Bill must be able to look at. 

We are also looking at registration of journalists.  Journalists, Madam Speaker, who are plying their trade in this country are accredited by ZMC, but when it comes to elections, they are told that they must also then go and accredit with ZEC.  Madam Speaker, when they accredit with ZEC, they are charged a fee.  When they are accredited with ZMCthey are charged a fee, but there is another dimension to that.  Those journalists that were covering BVR, the process of registering to vote, were accredited by ZEC and they paid a fee.  They are told that for them to be able to cover the election, they must come and reaccredit and again pay a fee.  I think, Madam Speaker, if you look at the economy in this country, especially those that are operating as free lance journalists, they are not able to raise that kind of money to pay accreditation fees all the time.  My proposal is that, as long as a journalist is accredited by ZMC, they must be able to cover the elections for as long as they are able to produce a card that was given by ZMC because it is ZMC which accredits journalists and not ZEC.

          Madam Speaker, when it comes to foreign observers, Government must have nothing to do with the issue of people that are coming to observe elections.  It must be the preserve of ZEC.  ZEC must be able to say who is coming to Zimbabwe, when are they coming to Zimbabwe and the processes and procedure that they must follow for them to cover that election.  That must not be done by Government because Government is run by a political party and that political party is interested in this election.  It must be done by ZEC, assuming that ZEC is independent.

          I also want to talk about the role of the security agents when it comes to electioneering.  Police officers must be able to vote.  Those that are going to be deployed to help ZEC with elections must be able to vote at a polling station of their choice. 

          Voter registration agents pay a registration fee of $5.  In my Constituency, Mabvuku-Tafara, I will have 68 polling agents.  Each of these polling agents must be able to raise $5.  We are coming from communities where people are not employed.  We are in a country which has more than 90% unemployment and most of these polling agents are not employed and they are not able to raise this amount.  This means that the burden to raise this money falls on the shoulders of the candidate.  I think this is a lot of money.  Why are election registration agents paying $5 when this should be done for free?

          The other issue I wish to raise about elections is the issue of registration slips.  We have a problem in our communities and I do not know if other Hon. Members are experiencing that especially those that are in Harare.  I can talk about Harare because that is what I know.  We have a group of people that are moving door to door demanding registration slips.  I am told it is happening everywhere.  Their names, identity numbers and their house numbers are taken down.  That in itself is intimidation.  I do not know who is behind this but I know it is happening in Mabvuku.  Last week I was called by members in my Constituency when a group of young men was walking around collecting these voter registration slips.  I confronted them and asked why they were collecting these voter registration slips and they threatened to beat me up.  I told them that if they try to get violent with me, I would beat them so hard that they would give up their Zimbabwean citizenship.  How many people are endowed with the power to protect themselves like me?  They are not so many.   So, there is a lot of intimidation before the elections.  People are being intimidated into submitting their voter registration slips.

There is also this issue of vote buying.  The rice that is being given by the Ministry of Public Service, Labour and Social Welfare is used for purposes of vote buying.  This was done using the rice that came to Mabvuku.  People were told to bring their voter registration slips and you must be a member of this particular party for you to be able to get the rice. Rice which is for social welfare must not be distributed through political structures.  Whatever comes from social welfare must be distributed using Government structures that exist in our constituencies and not using political party structures. That is vote buying and people who are doing that must be disqualified.

The other issue is that we cannot pretend that everything is alright and try to get into this election when there is POSA and AIPPA.  POSA must be amended. AIPPA must be amended or scrapped totally.  POSA is a piece of legislation that was used during the years of the liberation struggle.  It was adopted by this Government 37 years ago and they are still using it. Why are they still holding to the relics of colonialism?  POSA and AIPPA must go.  People must be able to access information.  Journalists must be able to access information pertaining to elections.  They must be able to get this information before the election, during the election and after the election.

I want to go to the issue of BVR. The voters’ roll that has been produced must be open for inspection by political parties.  These political parties must satisfy themselves that this voters’ roll is a voters’ roll that we are able to get into an election with and the election must be free, fair and credible.  If some of those things that I have said here are not implemented, some of the biggest political parties in this country – I was listening to my President Advocate Chamisa addressing a rally in Chinhoyi and I quote ‘if some of these issues are not attended to, he might not even want to get into that election’ because he is not going to get into an election.  Actually, the Government needs the participation of MDC-T in this election than MDC needs the participation of the Government.  If the President of the MDC-T refuses to participate in this election, this election will be a farce and the international community will not recognise it. 

The President of this country has two problems. He has the problem of legitimacy and acceptability.  If he does not run this election in a free, fair and transparent manner, he will still suffer the problem of lack of legitimacy. These issues must be attended to if the President of this country must get legitimacy but in any case, come elections in 2018, the President of this country will not need legitimacy because there will be a new pair of hands running the country.  With that Mr. Speaker, I rest my case.  I thank you.

THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS, (HON. ZIYAMBI):  I move that the debate do now adjourn.

Motion put and agreed to.

Debate to resume: Tuesday, 13th March, 2018.

On the motion of the MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS, (HON. ZIYAMBI), the House adjourned at Seven Minutes to Four o’clock p.m. until Tuesday, 13th March, 2018. 

 

 

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National Assembly Hansard NATIONAL ASSEMBLY HANSARD 08 MARCH 2018 VOL44 NO 45