(SUNDAY MAIL ZW) What does the Zimplats precedent mean for Zim?
What does the Zimplats precedent mean for Zim?Saturday, 24 March 2012 20:45
The following presentation was made by Mr Godwills Masimirembwa at the SAPES policy dialogue forum in Harare last Thursday. He argued that the Zimplats indigenisation deal has set an important precedent with far-reaching implications for Zimbabwe. Mr Masimirembwa is the chairman of the Zimbabwe Mining Development Corporation, but made the presentation in his capacity as executive chairman of the Zimbabwe Institute of Legal Studies, a private vocational training institution offering courses in Applied Law, Mineral Law and Policy, Forensic Science and Crime Investigations, Commerce and Law.
The issue of the democratisation of the ownership of the country’s natural resources and other productive assets is at the core of the indigenisation agenda.
The Zimplats precedent confirms the people of Zimbabwe’s unstoppable drive to take a controlling stake in their natural resources.
This position is supported by both international and domestic law.
The Principle of Permanent Sovereignty over Natural Resources (PSNR) is recognised under international law. United Nations General Assembly resolution 1803 (XVII) of 1962 entrenched the principle of “PSNR” by declaring, inter-alia:
“the right of peoples and nations to permanent sovereignty over their natural wealth and resources must be exercised in the interest of their national development and of the well-being of the people of the state concerned.
“The exploitation, development and disposition of such resources, as well as the import of the foreign capital required for these purposes, should be in conformity with the rules and conditions which they freely consider to be necessary or desirable with regard to the authorisation, restriction or prohibition of such activities.”
The General Assembly further declared:
“violation of the rights of peoples and nations to sovereignty over their natural wealth and resources is contrary to the spirit and principles of the Charter of the United Nations and hinders the development of international co-operation and the maintenance of peace.”
In 1966, “PSNR” became a general principle of international law when it was included in common Article 1 of the Covenant on Civil and Political Rights and the Covenant on Economic, Social and Cultural Rights. Common Article 1 of the Covenants provides as follows:
1. All peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit and international law. In no case may a people be deprived of its own means of subsistence.”
Article 47 of the Covenant on Civil and Political Rights and Article 25 of the Covenant on Economic, Social and Cultural Rights further states:
“nothing in the present covenant shall be interpreted as impairing the inherent right of all peoples to enjoy and utilise fully and freely their natural wealth and resources.”
Article 21 of the African Charter on Human and Peoples’ Rights says: “All peoples shall freely dispose of their wealth and natural resources.”
It is clear therefore that the right of “PSNR” was recognised and continues to be recognised because it was understood and is still understood that without it political independence is meaningless. Indeed in his 1955 report, the then Secretary-General of the United Nations, Mr Dag Hammarskjold, had this to say about common Article 1 of the two international covenants on human rights: “The right of self-determination certainly included the simple and elementary principle that a nation or people should be master of its own natural wealth or resource.”
In order for the people of a particular nation to enjoy sovereignty over their natural resources, Parliament has an obligation to enact laws in the interests of the people and for national development. Equally, the government is obligated to administer such laws so as to ensure that the people are the primary beneficiaries of the exploitation of the resources.
The state is obligated to convert natural resources into an enhanced standard of living for its citizens. The curse of many resource-rich African countries failing to reverse the ugly scenario of people wallowing in poverty in the midst of plenty for a few and multinational corporations can only lead to social, political and economic instability.
The recent Zimplats precedent means that the Government of Zimbabwe is fully cognisant of its obligation to the people of Zimbabwe in general, the community around the area where the resource is found, and workers.
The objectives of indigenisation were aptly captured by Honourable Saviour Kasukuwere (MP), Minister of Youth Development and Indigenisation, at the Ministry of Mines and Mining Development strategic planning review workshop held in Mutare on October 3 2011. He said the objectives are:
* “To democratise ownership of productive assets of the country and promote the development of a competitive domestic private sector that will spearhead economic growth and development.
* To economically empower previously disadvantaged Zimbabweans and create conditions that will enhance the economic status of disadvantaged Zimbabweans.
* Creation of a stable investment environment through the broad-based empowerment and partnerships.”
The indigenisation and economic empowerment agenda is being implemented in terms of the Indigenisation and Economic Empowerment Act (Chapter 14:33), Indigenisation and Economic Empowerment (General) Regulations, 2010, as amended and General Notice 114 of 2011 for the mining sector.
Minister Kasukuwere proceeded to say that the above-stated legislation “seeks to create an enabling environment for the participation of indigenous Zimbabweans in the mainstream economy and thereby create a national economy, dominated by indigenous Zimbabweans.”
Consistent with the principle of sovereign ownership of natural resources “PSNR”, the Zimplats precedent will apply to all entities which are required by law to dispose of 51 percent equity to indigenous Zimbabweans, but the imperative being that broad-based empowerment is achieved as follows:
* 10 percent to the community within the area where the resource is being exploited;
* 5 percent to management;
* 31 percent to the sovereign wealth fund in recognition of the fact that the resource though found within the area of a given community is a national resource and should therefore contribute to the general development of the entire nation.
It is my humble submission that the indigenisation laws of Zimbabwe and the administration framework that has been set by Government are consistent with the provisions of international law and will result in the economic empowerment of the people of Zimbabwe whilst at the same time ensuring that investors remain with significant shareholding in the indigenised enterprises.
The Zimplats precedent should be pursued to its logical conclusion by applying it to every company and every mining house that has not yet complied with the indigenisation laws of the country so as to wipe out the remaining vestiges of colonial injustice.
Labels: MINING, SOVEREIGNTY, UN, ZIMPLATS
posted by MrK @ 4:34 PM
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