Who owns Zimbabwe's minerals?

HARARE – Who owns the minerals of Zimbabwe?  Are minerals capable of being owned?  What is the relationship between the state and minerals?

The concept of “mineral” includes any substance, whether in solid, liquid or gaseous form, occurring naturally in or on the earth, in or under water or in tailings and have been formed by or subjected to a geological process, excluding water, but including sand, stone, rock, gravel and clay, as well as soil, other than topsoil.

Once minerals are extracted from the land, they become a distinct legal object separate from the land and normally become the property of a person other than the landowner or the miner.

In most countries, minerals form part of the common and shared heritage of the people. 

The State is a legal construct that is incapable of claiming absolute rights to that which God or another force could only have brought into existence.

If one starts from the premise that human beings existed before the introduction of states and also minerals existed independent of human existence then the proposition that minerals are owned by the living let alone the State cannot be accepted.

Accordingly, any political party that seeks to place the state as a living organism that is capable of owning hidden minerals and allocating them efficiently; to interested prospectors and miners has no direction.

The concept of mineral rights is legally confined to an entitlement to search for and to mine for minerals and extract, process and dispose of them.

It is indeed, a real legal right and must of necessity be distinguished from the often abused concept of ownership.

The government has a role to play in granting a right to explore and mine for minerals.

However, at the time a prospecting right is granted, the knowledge about the potential resource is generally not in the mind of both the explorer and the grantor of the right.

Generally, a prospecting order can be obtained by application and the owner of the surface right can apply for a certificate of rights to minerals in respect of the land of which he or she is the owner.

Mineral rights can be ceded to a third person through the registration of a notarial deed registered against the title deed of the land or a certificate can also be issued to a third person authorising the person to explore for minerals.

In many cases mineral rights are vested in a person other than the landowner and such a holder of the rights is entitled to go upon the property to which they relate to search for minerals, and, if he or she finds any, to server them and carry them away.

The value of minerals that are in situ is different from tradable minerals.

Generally upon separation of the minerals from the land, such minerals become distinct legal objects and the person vested with the mineral rights is entitled to acquire the ownership of the minerals so separated from the land.

The person who is granted mineral rights is also entitled in terms of the law to transfer the right to search for and to mine the minerals to a third person and this can be done through a prospecting contract or a mineral lease agreement.

The holder of mineral rights can claim compensation from the third person to whom the rights are transferred.

The role of the State if properly understood is to regulate the exploration and mining of minerals.

The power to regulate does not give the State unfettered policing powers on mining and prospecting activities.

In many jurisdictions, the State is not the owner of minerals but it has powers to exercise control over the exploration and mining of minerals.

In the case of Zimbabwe, the State has power to issue a prospecting permit and to afford the right to mine for minerals.

Such rights are generally granted to the mineral rights holder or to a person that seeks to acquire them through a written consent of the mineral rights holder to explore the minerals.

A prospecting permit can be granted, upon request and valid for a defined period. 

Authorising for mining operations is also administered by the government.

In the case of Zimbabwe, the State is the custodian of minerals. 

Accordingly, the vesting of mineral rights in the landowner is not applicable and this alone creates the impression that the government owns minerals for if the government does not own minerals, the question is who does?

The manifesto of Zanu PF is premised on unlocking the value embedded in the minerals through the implementation of the policy of indigenisation and economic empowerment.

However, the value of minerals can only be truly realisable in the market place.

All the prospecting orders in existence were granted by the government and therefore, the argument that such rights were alienated from the heritage of the people by colonialism does not speak to the actual facts.

The post-colonial administration has played its part in granting rights without following the dictates of the indigenisation law.

What the indigenisation and economic empowerment programme now seeks to do is effectively to negotiate the rights that were lawfully granted to prospectors and miners using the indigenisation language.

The policy seeks to penalise only those who prospect and establish the existence of minerals as no one is proposing that the beneficiaries of prospecting orders be assisted financially by indigenous persons in the search and mining efforts.

Generally mining is not an easy and cost-less activity.

People generally pursue exploration activities because of anticipated potential gains and as such a policy that seeks to allow existential participants to become relevant at harvest time is doomed to fail.

Taking back or negotiating already granted rights will not create new wealth rather what it does is undermine investment.

Job creation is important but this will not be achieved by transferring shares from one holder to another on account of race.

What is required is the creation of an environment that rewards risks and mineral exploration is one such risk that is important in the value chain.

It is understood that after 33 years of independence, the indigenisation army is not armed with weapons to prosecute the struggle for a better life using mineral resources.

More importantly, the failure to create generals in the mining sector by the post-colonial State cannot be blamed merely on the policies of the colonial era.

Nothing much can be done to reclaim the losses of the colonial experience but more can be done to capture the opportunities that are available as a consequence of the fact that Zimbabwe has minerals in its belly.

The abundant mineral wealth that remains locked in the earth will remain in situ unless there is a change of attitude as to what is required in order to deliver the promise of a better life for all.

Over the last 33 years, thousands of prospecting orders have been granted principally to parties with the necessary resources to prospect and mine.

Nothing has stopped the government from crafting a legislation placing the minerals under the control of landowners who after all are now predominantly indigenous persons.

Comments (7)

What hogwash!!! The sate cannot own minerals?? Minerals should be to the benefit of the majority and thus through state ownership will we have a more equitable benefit from our resources. Mutumwa it is not right for you to own all the asbestos in Zimbabwe or for Solomon Mujuru to own all the diamonds in Zimbabwe. Zimbabwe is for us all, we need a more equitable distribution that also rewards enterpreneurship.

admire musingarabwi - 25 July 2013

Admire!!! Hogwash was the first word that came to my mind before I read your comment! Mawere is an intellectual that I have always respected, but unfortunately he is sinking so low in his effort to discredit ZANU (PF). He is losing objectivity in his analysis, thus joining all the partisan analysts that are writing these days....

Bob - 25 July 2013

I agree Admire ,as usual Mawere is talking whole lot of nothings as usual.What do u expect from a person who has spent most of time outside the country and knows more about it through the internet , not reality.Wonder why you are giving this guy acres of space to write about nothing.He is just an opportunist trying to remain relevant so that he can find a way to get back the companies he lost.Just get a life and move on cause your time is up like Mugabe.

takemore Ruva - 25 July 2013

Guys minerals should benefit the whole nation like what is done generally in SA and other nations. Look our roads are the worst in the region but diamond, gold.... are here... Where is the money going? HEI.

NOSMAS - 25 July 2013

VICTORY POEM PART 7:: Hekani waro hombarume… Ngatisimudze minwe… Hamuwone hazvisi cool… Kutongwa naVasekuru… Gore rino anochiwona… Kuchemera mai vake Bona… Simukai tinovhota… MaZanu abva adhota…

Stop-a-Thief - 25 July 2013

Mawere is 100% correct.exploration is dead due to polices which are not clear to an investor or even us locals.exploration is not mining yet it brings billions of dollars into the country.money form stock exchange all over the world its risky half of the time it fails to find an economic deposit .to me its correct to put the mineral rights under the President if the land owner wants to mine in his farm he also applies for the mining rights like everyone else.the new mining policy being put across is the worst idea ever thought of.our present policy has been copied by so many countries it needs just a few changes to make sure indigenous people are involved.there are so many deposits to explore lets find them instead of trying to grab whats already working.

richard mugore - 26 July 2013

Mawere is 100% correct.exploration is dead due to polices which are not clear to an investor or even us locals.exploration is not mining yet it brings billions of dollars into the country.money form stock exchange all over the world its risky half of the time it fails to find an economic deposit .to me its correct to put the mineral rights under the President if the land owner wants to mine in his farm he also applies for the mining rights like everyone else.the new mining policy being put across is the worst idea ever thought of.our present policy has been copied by so many countries it needs just a few changes to make sure indigenous people are involved.there are so many deposits to explore lets find them instead of trying to grab whats already working.

richard mugore - 26 July 2013

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