Ownership of Natural Resources: The Zimbabwean Experience�

Shamiso Mtisi

Zimbabwe Environmental Law Association (ZELA)

www.zela.org

Ownership: The concept

• Ownership is a leading concept in property law and one of the most comprehensive rights a person can have over property
• Entitlements include; the exercise of control, use, benefit, entitlement to encumber, right to alienate, to transfer, etc.
• Property ownership in many countries enjoys constitutional entrenchment as a fundamental right
• However, ownership is not an absolute concept, since ownership can be restricted by statutes, decrees, town and country planning requirements and matters of public interest or public policy or government actions since states have dominion power

• In the natural resources sector, there is need to understand the rights that can accrue to people over land, water, wildlife, minerals and forests among other resources, often stated as “tenure rights”
• Tenure rights are a composition of rights and obligations or entitlements that people have over resources

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Natural Resources tenure regimes�

• Tenure rights in the natural resource management sector can be categorised as follows;
• State Property
• Private Property
• Common Property

�Communal Areas�

• Communal land is owned by the state; vested in the President
• The Act gives communal people usufruct/use rights e.g. right to plough, cultivate, graze animals and build houses
• In fact, the State holds de jure [legal] ownership, while the rural communities exert de facto [factual] rights
• Traditional leaders have responsibility to allocate land using customary norms and practices; (corruption and collusion with mining companies to oppress the people)
• Result of weak tenure rights: ddisplacements , limited opportunities for free, prior and informed consent, loss of customarily held land and livelihoods etc.

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Mineral rights�

• Rights to minerals are vested in the President
• The Act states “the dominium in and the right of searching and mining for and disposing of all minerals, mineral oils and natural gases, notwithstanding the right which any person may possess in and to the soil on or under which such minerals, mineral oils and natural gases are found, is vested in the President”
• Acquisition of mining rights in terms of the Mines and Minerals Act

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Effects of weak tenure rights: displacement�School built by Anjin-a Chinese diamond mining company cannot accommodate displaced children-makeshift classrooms being used

Houses built by Anjin for displaced communities cracking less than a year after being built

Not enough pastures for livestock at relocation site

The Chinese factor

Water resources are being polluted by diamond mining companies

Water pollution by diamond mining companies

�GOVERNMENT LED PROGRAMMES TO EMPOWER COMMUNITIES IN THE NATURAL RESOURCES SECTOR

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Land Reform Programme

• Land ownership is historically contested in Zimbabwe
• In 2000 Gvt embarked on a violent land redistribution exercise; “Fast Track Land Resettlement Programme” to redistribute land to the landless black population from mostly white commercial farmers (state exercising its dominion power), after willing buyer-willing seller approach had failed
• Constitution: Section 16 provides for compulsory acquisition of land for agricultural resettlement;
• Agricultural land acquired for resettlement is vested in the state and land beneficiaries only get 99 year leases (agric) or 25 year leases (wildlife) (most do not have these leases-insecurity)

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Results: Mix of Positives and Negatives

• Positives: previous disadvantaged groups now have land
• Recent research studies indicate that some resettled farmers are becoming productive e.g. tobacco sector
• Challenges: Multiple ownership of farms by the elite (most of whom control state institutions and bodies); the powerful taking over from the poor
• Bread-basket status gone…
• Violent nature of the acquisitions (human rights violations, political polarisation precipitated economic decay)
• Underutilization and neglect of productive farmland allocated under the fast track programme: in many cases due to lack of inputs, loans and other support

�� CAMPFIRE PROGRAMME (WILDLIFE SECTOR)�

• Communal Areas Management Programme for Indigenous Resources (CAMPFIRE), with support from USAID
• The government gave appropriate authority status to local authorities (1986) to manage wildlife resources for the benefit of communities living near/in wildlife rich areas
• Part of the Community Based Natural Resources Management (CBNRM) programmes to involve communities in the management of and access (and benefit sharing) to natural resources

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• The CBNRM: combines conservation objectives with the generation of economic benefits for rural communities. Assumptions : locals better placed to conserve natural resources, people conserve resources if benefits exceed costs and people will conserve a resource that is linked directly to their quality of life.
• In some areas CAMPFIRE resulted the building of schools, clinics and other infrastructure
• However, the majority of the CAMPFIRE projects failed after withdrawal of donors e.g. USAID funding?
• Sustainability model and management structures were poor

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One of the CAMPFIRE projects

Eco-tourism project-one of the successful CAMPFIRE project-Nyanga (Gairezi)

���Indigenisation and Economic Empowerment in the Mining Sector���

• Government passed laws to indigenise all foreign owned businesses (51% shareholding to be disposed to indigenous Zimbabweans and 41% for foreigners)
• Foreign owned mining companies required to submit indigenization implementation plans
• Most have submitted plans

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Who may take up the shares?

• Foreign owned mining companies required to dispose shares to a designated entities which include;
• National Indigenisation and Economic Empowerment Fund (but has no money to acquire shares)
• Zimbabwe Mining Development Corporation (ZMDC) (failing to run mines it has, except diamond mining where it is fuelling and funding a parallel Gvt being run by ZANU PF)
• A Sovereign Wealth Fund that may be created (fertile ground for corrupt elements)
• Employee share ownership schemes or trusts or management share ownership scheme or trust
• Community share ownership schemes or trusts

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�Community Share Ownership Schemes/ Trusts �

• Mining companies required to dispose 10% to community share ownership scheme
• Community defined as residents of an RDC, ward or distinct community of persons whose natural resources are being exploited by a business
• Revenue to be used for building schools, hospitals, clinics, dipping tanks, road maintenance and water works among other community projects (is this CSR?)
• Platinum mining companies have initiated community share ownership schemes; ZIMPLATS (implats), UNKI (Anglo-American), MIMOSA (implats and Acqurius-registered in Mauritius-a tax haven), MARANGE-ZIMUNYA

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School being built by MIMOSA (picture by David Van Wyk)

The old school near MIMOSA mines

Problems�

•  Community share Ownership schemes being used as a political/electoral and community mobilisation mechanism
• Limited community consultations
• Mostly composed of traditional leaders as Trustees with a few government officials
• Lack of transparency and accountability in the whole scheme; creating fertile ground for corruption
• Elites may end up capturing the resource instead of the deserving; political patronage system in Zimbabwe

���HOW TO AVOID THE PROBLEMS FACING ZIMBABWE���

• Develop legal, policy and institutional frameworks that enhance efficiency, transparency, accountability and openness.
• Do not politicize community empowerment programmes and natural resources management programmes
• Find innovative ways of breaking the link between politicians and big business
• Ensure respect of property rights (including customary rights), civil, political, economic, social and cultural rights (human rights) (use dialogue and other persuasion measures to negotiate ownership changes)

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• Promote programmes that enhance community participation in economic benefits e.g. revenues should be used for service delivery, community development.
• Promote free, prior and informed consent
• CBNRM should not continue to be viewed as subsistence enterprises for communities but be regarded as businesses that communities can engage in for social and economic transformation, (sustainability models needed)
• Research & development: create think tanks that recommend innovative but sustainable ways of empowering the people in the natural resource sector

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THANK YOU