Activist Rafiq Hajat has condemned the proposed Draft Mines and Minerals Bill.
This bill, he says, creates bureaucracy of byzantine complexity, which will be difficult to administer. Is he right?
With the current 1981 Mines and Mineral Act, mining administration in the country—in terms of institutional set up, recognises three major players—the public institutions that define everything to do with mining management in the country.
They include: the Ministry of Natural Resources, Energy and Mining, with the minister having the overall power of granting mining licences, large or small; the Department of Mines, which is for regulatory administration and inspectorate of mining operations; and finally, the Department of Geological Survey (GSD) which maintains it, mandate of geological mapping and acquisition and archiving of geological and mineral resources data.
This institutional set up, experts and activists have always said, gave too much power to the minister when awarding licences. The general feeling was that ministers failed to exercise such power in an accountable and transparent way when awarding licences.
There was a strong call, then, from the public to reduce the ministerial powers and also create other institutions to provide checks and balances especially in awarding, inspecting and maintaining the licences.
Fortunately, the Draft Mines and Minerals Bill addresses that. Apart from maintaining the three institutions as provided in the 1981 Mines and Minerals Act, the bill introduces two other institutions—the Mineral Resource Committee (MRC) and the office of the Commissioner for Mines.
According the bill, the minister, as in the 1981 Act, maintains the duty of granting of licences. What has changed is that the minister will not exercise such a duty exclusively. The MRC—which will comprise technical people from various government line ministries—will have a key role in the processes of granting of licences.
The purpose of creating the MRC, according to Natural Resources, Energy and Mining Minister Bright Msaka, is to ensure transparent and efficient issuance and administration of minerals in the country.
The MRC, according to the bill, will scrutinise applications for mineral licences; recommend to the minister licences for granting; advise the minister on licenses for suspension or cancellation; deal with complaints concerning licence holders; and recommend to government measures for the harmonisation of activities, plans and policies concerned with the sustainable development and utilisation of mineral resources.
According to the draft bill, MRC’s decisions will be respected—no appeal or reversal by the minister and, again, the minister to grant without exception upon approval of them.
Beyond MRC, which has been created to reduce power concentration in the minister, the draft bill also provides for a new office of the commissioner for mines and minerals.
The commissioner—whose appointment will be in accordance with prevailing civil service guidelines—shall act independent of the minister and, most importantly, the office will be empowered with the administration of the Act.
In the execution of his or her functions in relationship to the office of the commissioner for mines and minerals, the bill provides, the minister shall, at all times, and in all matters ensure the independence of the office of the commissioner for mines and minerals in regard to the discharge of its functions and operations. In fact, there is even a provision that commissioner for mines and minerals will be provided its own budget to ensure it will have an adequate staff and resources to fulfil its functions.
In creating these two new institutions, according to Msaka, the emphasis is to ensure that decisions on mining are not made unilaterally, but by many and also subjecting them to issues of transparency and accountability.
However, not everybody see it that way.
“We’ve reduced the powers of the minister and created a very powerful commissioner. Are we not repeating our mistakes of the past? These powers should be reviewed and reduced by broader delegation,” says Hajat.
He notes that the bill is creating a cumbersome bureaucracy of byzantine complexity, which will be difficult to administer.
“I still hold to the position that a cross sectional Mines and Minerals Regulatory Authority be set up to vet applications and regulate the sector as proposed by the Mines and Mineral Policy and this intricate multi-layered hierarchical structure should be streamlined and simplified for efficacy.
“The bill should clearly stipulate functions for the authority and provide for appointments based on qualifications such as engineering, accountancy, law and women and civil society representation; appointment to be subject to subject to confirmation by Parliament,” he says.
Beyond that, a district commissioner, speaking on condition of anonymity, faulted the composition of the MRC as ‘exclusive to Capital Hill.’
“It is an important committee but it is not representative enough. There are no mines at Capital Hill. Mines are with us in the districts. That is why when conflicts arise between mining companies and communities, we are the people who get stoned, who get cursed—in other words we are the ones who handle the issues as they rise, not Capital Hill.
“Unfortunately, neither a district commissioner nor a chief is represented in the MRC. Why should that happen?” he says.
His arguments concur with that Paramount Chief Kyungu of Karonga, who wonders how the entire administrative structure could leave out key stakeholders such as traditional leaders, civil society organisations, interest groups and representatives of vulnerable groups.