ZAMBIA Law and Practice Contributed by: Harriet Mdala, Natasha Lungu, Samuel Muleya and Chanda Musonda-Chiluba, MAY and Company
years of an offence involving fraud or dishonesty or an offence under other written law within or outside Zambia and sentenced to imprisonment without the option of a fine. 2.8 Illegal Mining Illegal mining is a major issue in Zambia with the escalation of cases in recent years such as illegal gold mining in Kasempa district. It is highly disruptive to legal mineral production in the sense that it has led to deforestation, soil degradation and vast land damage or ruin due to evasion of environmental regulations. This affects other economic activities dependent on natural resources. Furthermore, government treasury and companies are deprived of what they would produce and earn because the illicit miners are producing and supplying through the back door thereby distorting the formal mining sector as the illegal mining competes with the formal mining sector. Section 5 of the Mines Act provides that the director of mines safety is responsible for mat - ters concerning the environment, public health and safety in exploration, mineral processing and mining operations. The Mines Safety Department has a Mining Unit that is responsible for carrying out inspections, mining safety audits and risk assessments. The Mines Act places an obliga - tion on the holder of a mining licence to maintain security and ensure that there are no illegal min - ers at the licensee’s tenements under Section 35(1)(l). Furthermore, Section 111(1) of the Mines Act provides that a person who explores, retains a mineral deposit or mines otherwise than in line with the provisions of the Mines Act commits an offence. The Section is not categorical on the criminal sanctions. However, Section 112 of the Mines Act states that a person who commits an offence
under the Mines Act for which no penalty is pro - vided is liable, upon conviction in the case of an individual, to a penalty not exceeding 500,000 penalty units or to imprisonment for a term not exceeding five years, or to both; or in the case of a body corporate or unincorporate body, to a penalty not exceeding one million penalty units. Notably, the government has embarked on the formation of mining co-operatives to encourage illegal miners to legally contribute to the nation’s development though the payment of taxes. Companies usually have recourse to court mechanisms when faced with illegal mining within their licence areas. Remedies sought are usually a declaration that certain operations and mining activities are illegal and an injunction to restrain illegal miners from interfering with the holder’s rights in respect of a licence as well as damages in respect of loss suffered by a holder of the licence. 2.9 Good and Bad Examples of Community Relations/Consultation Impacting Mining Projects A good example of environmental and communi - ty relations/consultations around mining projects in Zambia is environmental requirements to start mining. The conducting of an EIS is required by the Act as read together with the EIA Regulations as is the conducting of an EIA. Furthermore, Section 35(1) of the Mines Act, places an obli - gation on a holder of a mining licence to develop the mining area, and carry on mining operations, with due diligence and in compliance with the programme of mining operations and the EIA. Section 32(2) of the Mines Act provides that there will be attached to a mining licence as part of the conditions of the licence the applicant’s undertaking for management of the environment in the mining area.
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