President Emmerson Mnangagwa has returned the Mines and Minerals Amendment Bill of 2015 to Parliament to have sticking issues addressed before he can sign it into law.
BY BUSINESS REPORTER
The legislation was gazetted in May and is being enacted to amend, rather than replace, the Mines and Minerals Act [Chapter 21:05] of 1961, the principal law governing the sector.
Various stakeholders, including the Chamber of Mines of Zimbabwe and the Zimbabwe Prospectors’ Association (ZPA), have criticised the proposed law over several controversial provisions.
The Chamber of Mines of Zimbabwe is not happy with the definition of strategic minerals, which is so broad that it covers nearly every mineral, and so elastic that more minerals could be reclassified in the future under the “any other mineral” clause.
Among its long list of concerns, the country’s largest representative body is also uncomfortable with provisions seeking to transfer administrative aspects of the pegging of claims from the principal Act to subsidiary legislation.
It also feels that administrative boundaries between the Mining Affairs Board and the proposed mining cadastre registry is blurred.
ZPA, on the other hand, has been fighting to have prospectors recognised in the Act as staking agents and has engaged Parliament and the Mines ministry over the issue.
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The Bill, which removed approved prospectors from the amendment text, was, however, gazetted without incorporating key stakeholder concerns.
Earlier this year, ZPA, through the body’s president Samson Dzingwe, wrote to Mnangagwa petitioning him not to sign the Bill into law, contending that their views had been ignored.
Although the ministry later compromised and agreed to recognise prospectors as staking agents, Mnangagwa has decided to have the Bill further revised to co-opt stakeholder input and address all their valid concerns.
“We are happy that the Ministry of Mines accepted our concerns and they are working on those issues,” Dzingwe said.
“May I also thank His Excellency President Mnangagwa for being a listening President.”
From a drafting perspective, the amendments being proposed are so extensive that they constitute a recasting operation, in violation of the principles of legislative drafting.
The legislation is a fully-elaborated framework with 61 clauses which seek to repeal 47 sections without substituting them, amending only 15.
The legislation further proposes to repeal and substitute 14 more sections, bringing the total number of affected sections to 76.
It further proposes to introduce 12 new sections and 12 new sub-sections.
In addition, the amending text also seeks to repeal and substitute five parts of the Mines and Minerals Act [Chapter 21:05] and add a new part with six sections.
As currently proposed, more than half of the existing sections of the statute will either be amended or repealed.
Since the legislation is to be read together with the original statute, the vast patchwork of revised provisions will present problems for judges, lawyers, consultants and those affected by the statute to follow the text of statute.
It is generally accepted that the process of amending the whole or part of a statute should leave the “whole subject matter of statute” and the “authoritative text of statute” intact.
If the “whole subject matter” or “scope” of statute is changed, the amending text is to be construed as a substitute (new legislation) as opposed to a mere amendment.