Complaint Relating to Violations of Fundamental Rights and Duties Arising from Forced Evictions of Artisanal Miners from Afrika Mashariki Gold Mine, Tarime (submitted to Tanzania Commission for Human Rights)

TO: The Honorable Chairman and Commissioners,
Tanzania Commission for Human Rights and Good Governance
P.O. Box 2643
Dar es Salaam.

RE: COMPLAINT RELATING TO VIOLATIONS OF FUNDAMENTAL RIGHTS AND DUTIES ARISING FROM FORCED EVICTIONS OF ARTISANAL MINERS FROM AFRIKA MASHARIKI GOLD MINE, TARIME

We, Lawyers’ Environmental Action Team Company Limited (“LEAT”), respectfully lodge a complaint concerning the Afrika Mashariki Gold Mine (“the Afrika Mashariki Mine”) at Nyabigena and Nyabirama areas of Tarime District in Mara Region. The complaint is brought pursuant to sections 15(1)(b), 22(1) and 22(3) of the Commission for Human Rights and Good Governance Act, 2001, Act No. 7 of 2001 (“the 2001 Act”); and Article 130(1) of the Constitution of the United Republic of Tanzania, 1977 (“the Constitution”), as amended from time to time. The complaint is brought on behalf of the parties referred to in Part A of the complaint hereinbelow. The complaint alleges that the parties referred to in Part B hereinbelow are in violation of the complainants’ legal and constitutional rights, freedoms and duties as guaranteed in the Mining Act, 1979 (“the 1979 Act”); the Mining Act, 1998 (“the 1998 Act”); and the Constitution.

The complaint further alleges various violations of international law and internationally accepted human rights norms and standards as enunciated in the Universal Declaration of Human Rights, 1948 (“the Universal Declaration”); the European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950 (“the European Convention”); the Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms, 1954 (“Protocol to the European Convention”); the European Social Charter, 1965 (“the European Social Charter”); the International Covenant on Economic, Social and Cultural Rights, 1966 (“the ICESCR”); the International Covenant on Civil and Political Rights, 1966 (“the ICCPR”); the American Convention on Human Rights, 1978 (“the American Convention”); the African Charter on Human and Peoples’ Rights, 1981 (“the African Charter”); and the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, 1988 (“Additional Protocol to the American Convention”).

Although Tanzania is not a party to the European Convention, the European Social Charter or the American Convention, LEAT and the complainants believe – and respectfully urge the Honorable Commissioners to share this belief - that the human rights norms and values enunciated in these and other international human rights instruments are nonetheless binding on Tanzania for they have become jus cogens. The latter are peremptory or mandatory norms of general international law defined under Article 53 of the Vienna Convention on the Law of Treaties, 1969, as norms “accepted and recognized by the international community of states as a whole as norms from which no derogation is permitted and which can be modified only be subsequent norms of general international law having the same character.” According to a commentary on jus cogens by Henkin, Pugh, Schachter and Smit (International Law: Cases and Materials, 3rd Edn., American Casebook Series, St. Paul, West Group, at p. 92), the International Law Commission that drafted the Vienna Convention, refrained from giving in its draft Articles on the Convention any examples of rules of jus cogens. However, “it did record that in this context mention had … been made of the prohibition of criminal acts under international law, and of acts such as … the observance of human rights, the equality of states and the principle of self-determination.”

Finally, the complaint alleges that the parties referred to in Part B hereinbelow have also undermined the rule of law and good governance which are at the heart of Tanzania’s legal and constitutional order.

A. DESCRIPTION OF THE COMPLAINANTS

The complaint is made on LEAT’s own behalf and on behalf of 1273 former small-scale miners, peasant farmers and landowners (“the complainants”) whose names appear in the list of names annexed hereto and marked “A” to form part of this complaint. Hundreds and, possibly, thousands more affected people are in the process of identifying themselves to LEAT and registering their names in order to be joined as complainants in this complaint. When the process of identification and registration is completed, the names of these new complainants shall be added onto the list of names of the complainants already marked “A”.

1. LEAT is a public interest environmental law organization based in Dar es Salaam and it is registered as a company limited by guarantee under the Companies Act, 2002. LEAT undertakes applied legal and policy research and advocacy work on issues of sustainable development, the protection of the environment and human rights. Since 1999 LEAT has been interested in, and has conducted investigations of, the socio-economic, environmental and human rights impacts of foreign investment in the mining sector in Tanzania. It is out of a concern for the rights and interests of communities, such as the complainants, living and working in and around mineral rich areas of Tanzania that LEAT appears as counsel for the complainants in this complaint. LEAT also appears in this complaint as a complainant in its own right because it is deeply concerned at the pattern of systematic illegality, abuse of power and violation of human rights of communities living in mineral rich areas that has characterized the activities of public officials, governmental institutions and foreign investors in the mining sector.

2. The complainants formerly lived and worked for gain as small-scale miners, traders, peasant farmers and livestock keepers in Matongo, Nyamwaga and Kemambo Wards in Tarime District of Mara Region. As artisanal or small-scale miners, the complainants had since 1987 owned and operated gold mining shafts, water pumps, crushers and other mining equipment. The complainants also engaged in farming and livestock keeping on lands held under their customary laws. As well as these property interests the complainants also individually or collectively owned residential and commercial properties as well as burial grounds. The complainants are currently resident at Kewanja, Nyangoto, Matongo, Genkuru, Nyamwaga and Kerende villages and other areas adjacent to the Afrika Mashariki Mine.

For purposes of this complaint, LEAT and the complainants are represented by the following legal counsel whose address, telephone and fax numbers and e-mail appear below:

Mr. Tundu A. M. Lissu, Advocate
Coordinator, Mining, Environment and Human Rights Project
Lawyers’ Environmental Action Team
Mazingira House, Mazingira Street
Mikocheni Area
P.O. Box 12605
Dar es Salaam
Tel: (022)278-0859; (022)278-1098; (0744)447-323; (0748)447-323
Fax: (022)278-0859
E-mail: lissu@wri.org; lissubulali@yahoo.com; leat@twiga.com.

Mr. Rugemeleza A.K. Nshala, Advocate
Executive Director,
Lawyers’ Environmental Action Team
Mazingira House, Mazingira Street
Mikocheni Area
P.O. Box 12605
Dar es Salaam
Tel: (022)278-0859; (022)278-1098
Fax: (022)278-0859
E-mail: rugemeleza@yahoo.com, leat@twiga.com.

Mr. Vincent D. Shauri, Advocate
Director of Research and Publications
Lawyers’ Environmental Action Team
Mazingira House, Mazingira Street
Mikocheni Area
P.O. Box 12605
Dar es Salaam
Tel: (022)278-0859; (022)278-1098; (0744)261-616
Fax: (022)278-0859
E-mail: vshauri@yahoo.co.uk, leat@twiga.com.

B. DESCRIPTION OF THE PARTIES AGAINST WHOM THE COMPLAINT IS LODGED

1. Afrika Mashariki Gold Mines Limited (“Afrika Mashariki”) is a limited liability company registered under the laws of Tanzania and acts as the manager and operator of the Afrika Mashariki Mine. Afrika Mashariki is a wholly-owned subsidiary of an Australian mining company known as East Africa Gold Mines Ltd., (“EAGM”) based in Adelaide, Australia but with a national office in Arusha, Tanzania. Information posted on EAGM’s website (see www.eagm.com.au) states that that company invests in gold exploration and mining in East Africa through “the 100% owned subsidiary, Afrika Mashariki Gold Mines Limited (AMGM).” According to the information in that website, EAGM acquired all shares in Afrika Mashariki in 1997. A copy of the said page of the website is attached hereto and marked “B” to form part of this complaint. Afrika Mashariki’s address of service for the purposes of this complaint is in the care of the General Manager, EAGM/Afrika Mashariki Gold Mines Ltd., Plot 11/8, Block C, Njiro, P.O. Box 10960 Arusha; or P.O. Box 71579 Dar es Salaam; or P.O. Box 422 Tarime.

2. Placer Dome Inc. (“Placer Dome”) is a mining company based in Vancouver, British Columbia, Canada. According to press release issued by EAGM in Adelaide, Australia, dated July 9, 2003, all shareholders in EAGM have recently accepted a takeover bid from Placer Dome, thus making Placer Dome the current owner and operator of the Afrika Mashariki Mine. (See “East African Gold Mines Shareholders Accept $A382 Million Placer Dome Offer”, News Release Issued Through Field Business Services Pty Ltd., Adelaide, Australia, dated July 9, 2003). Placer Dome’s takeover of the Afrika Mashariki Mine is also reported in an article published by the daily Majira newspaper of Sunday, July 13, 2003 with the heading “Vituko vya wawekezaji: Mgodi wa Dhahabu wauzwa.” Copies of the said press release and the Majira article are attached hereto and marked “C” and “D” respectively to form part of the complaint. For purposes of this complaint, Placer Dome’s address of service is in the care of the General Manager, EAGM/Afrika Mashariki Gold Mines Ltd., shown in paragraph 1 of Part B of the complaint above.

3. The Minister for Energy and Minerals Daniel Yona (“Minister Yona”). Under section 57 of the 1998 Act, Minister Yona has powers to suspend or cancel a mining license of a holder who violates a variety of conditions or requirements under the 1998 Act. It is LEAT’s and the complainants’ case that Minister Yona should have exercised his powers under that section to suspend or cancel the mining license granted to EAGM/Afrika Mashariki for wide ranging non-compliance with 1979 Act, the 1998 Act; the Constitution; and international human rights norms and standards as elaborated in Parts D and E of the complaint below. Minister Yona’s address of service for the purposes of this complaint is in the care of the Permanent Secretary, Ministry of Energy and Minerals, Dar es Salaam.

4. Former ministers Abdallah Kigoda (“former minister Kigoda”) and Edgar Maokola Majogo (“former minister Maokola Majogo”). Having served as minister responsible for mining between 2000 and 2002, former minister Maokola Majogo had powers, under section 57 of the 1998 Act, to suspend or cancel a mining license of a holder who violates a variety of conditions or requirements under the 1998 Act. Instead of exercising his legal powers to protect legality and the fundamental rights of the complainants, former minister Maokola Majogo in fact presided over or blessed the forcible evictions of the complainants and thousands of other residents of the five villages from their lands and properties at Nyabigena and Nyabirama areas, leading to the violation of the complainants’ fundamental rights. Former minister Kigoda also served as minister responsible for mining between 1997 and 2000. He, therefore, had powers – in addition to those under section 57 of the 1998 Act - to suspend or cancel a Mineral Right granted to a holder who failed to comply with any requirements of the 1979 Act with which he was bound to comply. (See section 57(1)(c) of the 1979 Act.) It is LEAT’s and the complainants’ case that former minister Kigoda not only failed or neglected to exercise his powers to uphold legality, he in fact purported to re-grant mining licenses ML 17/96 and ML 18/96 over the two areas under the 1998 Act as Special Mining Licenses SMLs 17/96 and 18/96 respectively on February 7, 2000. (See Afrika Mashariki Gold Mines Ltd., North Mara Gold Project: Environmental Management Plan, August 2000, p. 1). Therefore, former minister Kigoda and former minister Maokola Majogo failed or neglected to exercise their powers under the law to suspend or cancel the mining license granted to EAGM/Afrika Mashariki for wide ranging non-compliance with 1979 Act, the 1998 Act; the Constitution; and international human rights norms and standards as elaborated in Parts D and E of the complaint below. Former ministers Kigoda and Maokola Majogo are still cabinet ministers and they can be reached through the Attorney General’s Chambers, Dar es Salaam.

5. Former minister William Shija (“former minister Shija) served as minister responsible for mining between 1995 and 1997. LEAT and the complainants contend that on August 30, 1996, former minister Shija purported to grant to EAGM/Afrika Mashariki mining licenses known as Mining License No. ML 17/96 with respect to Nyabigena area; and Mining License No. ML 18/96 with respect to Nyabirama area, all within the complainants’ villages and various property interests as described in paragraph 2 of Part A of the complaint above. Former minister Shija’s purported grants of the said mining licenses set the stage for the forcible evictions of the complainants from the said Nyabigena and Nyabirama areas that resulted in the wide-ranging violations of human rights as elaborated in Parts D and E of the complaint hereinbelow. Firstly, Under section 57(1)(c) of the 1979 Act, former minister Shija had powers to suspend or cancel a Mineral Right granted to a holder who failed to comply with any requirements of the 1979 Act with which he was bound to comply. It is LEAT’s and the complainants’ case that former minister Shija failed or neglected to exercise his powers under the law to suspend or cancel the mining license granted to EAGM/Afrika Mashariki for wide ranging non-compliance with 1979 Act, the Constitution and international human rights norms and standards as elaborated in Parts D and E of the complaint below. Former minister Shija is a Member of Parliament for Sengerema constituency and his address of service for purposes of this complaint shall be provided by the Clerk to the National Assembly, Dar es Salaam.
6. The Commissioner for Minerals in the Ministry of Energy and Minerals Gray Mwakalukwa (“Commissioner Mwakalukwa”) and former Tarime District Mines Officer Hassan (“former Mines Officer Hassan”). Commissioner Mwakalukwa had significant powers under sections 9 and 10 of the 1979 Act to administer the law; and under Part VI, to decide various disputes between holders of mineral rights between themselves, and between holders of mineral rights and third parties. Under sections 16, 17, 18 and 19 of the 1998 Act, Commissioner Mwakalukwa has powers to supervise and regulate the proper and effectual carrying out of the provisions of the 1998 Act. In addition, Commissioner Mwakalukwa enjoys considerable powers, under Part VIII, to decide various disputes between holders of mineral rights between themselves, and between holders of mineral rights and third parties. It is LEAT’s and the complainants’ contention that Commissioner Mwakalukwa could, and should, have averted the abuse of power and the violation of human rights of the complainants had he correctly exercised his powers under the law. It is LEAT’s and the complainants’ case that Commissioner Mwakalukwa played an instrumental role in the complainants’ forced evictions and in the violation of their fundamental rights under the 1979 Act, the 1998 Act and the Constitution and in international human rights law. Under both the 1979 and 1998 Acts, Commissioner Mwakalukwa had, and still retains, powers to appoint and did appoint former Mines Officer Hassan as the District Mines Officer for Tarime District. With respect to the complainants’ forced evictions, Commissioner Mwakalukwa’s powers were delegated to, and exercised by, former Mines Officer Hassan. It is LEAT’s and the complainants’ case that former Mines Officer Hassan played an instrumental role in their forced evictions and in the violation of their fundamental rights under the 1979 Act, the 1998 Act, the Constitution and international human rights instruments. Commissioner Mwakalukwa’s address of service for the purposes of this complaint is in the care of the Permanent Secretary, Ministry of Energy and Minerals, Dar es Salaam. For his part, former Mines Officer Hassan is said to have resigned from public service to join EAGM/Afrika Mashariki staff and his address of service for the purposes of this complaint is in the care of the General Manager, EAGM/Afrika Mashariki Gold Mines Ltd., Plot 11/8, Block C, Njiro, P.O. Box 10960 Arusha; or P.O. Box 71579 Dar es Salaam; or P.O. Box 422 Tarime.

7. Public Relations Officer John Bosco Mbusiro (“PRO Mbusiro”) is, and has for many years been, in charge of EAGM/Afrika Mashariki’s relations and dealings with the communities living adjacent to, or within, the Afrika Mashariki Mine including the complainants. It is LEAT’s and the complainants’ contention that PRO Mbusiro played an instrumental role in their forced evictions and in the violation of their fundamental rights under the 1979 Act, the 1998 Act, the Constitution and international human rights instruments.

8. The Regional Commissioner, Mara, Nimrod Lugoe (“RC Lugoe”), former Tarime District Commissioners Cheyeka (“former DC Cheyeka”) and Chinuno Magoti (“former DC Magoti”) and current District Commissioner Paschal Mabiti (“DC Mabiti”). Former DC Cheyeka was responsible for pressuring the village leaders to enter into bogus agreements with EAGM/Afrika Mashariki which purported to permit EAGM/Afrika Mashariki to carry out drilling operations in claim areas held by the five villages. For his part, former DC Magoti continued the illegal practices started by former DC Cheyeka. DC Mabiti played a more direct role in the events of 2001 when the complainants were forcibly evicted from Nyabigena and Nyabirama. Therefore, as heads of both the regional and district politico-administrative machinery in the area, these public officers played significant roles in the forced evictions of the complainants that should be the subject of the Commission’s scrutiny. Whereas former DC Cheyeka’s whereabouts are unknown to the complainants, former DC Magoti is in retirement and resides in Musoma Town and can be traced through the Regional Commissioner’s Office, Musoma. RC Lugoe’s address of service for the purposes of this complaint is in the Regional Commissioner’s Office, Mara; while that of DC Mabiti is in the District Commissioner’s Office, Tarime.

9. District Land Valuation Officer David Magabe (“Land Valuer Magabe”) played significant role in the violation of the complainants’ property rights by carrying out illegal and irregular evaluation of the complainants’ property in agricultural land, growing crops, residential and commercial buildings and mining works. This set the stage for the forced evictions of the complainants without fair and reasonable compensation as recognized by Tanzanian land law, the 1979 Act, the 1998 Act, the Constitution and international human rights norms and standards. Land Valuer Magabe has continued to carry out illegal and irregular evaluations of the complainants’ properties thereby occasioning a continuing violation of the complainants’ legal and constitutional rights.

10. The Regional Police Commander Paul Ntobi (“RPC Ntobi”) and Officer Commanding District, Tarime Mbelwa (“OCD Mbelwa”) and Officer Commanding Criminal Investigation Department, Tarime (“OCCID Tarime”) whose name remains unknown to the complainants. RPC Ntobi, OCD Mbelwa and OCCID Tarime commanded the police Field Force units that carried out the forced evictions of the complainants thereby violating the fundamental rights under the 1979 Act, the 1998 Act, the Constitution and international human rights instruments. RPC Ntobi, OCD Mbelwa and OCCID Tarime have also instituted vicious terror campaign intended to intimidate the complainants into silence. These officers have continued to oversee the punitive police operations and other measures of repression carried out against the complainants whenever the complainants have dared to challenge the violation of their fundamental rights. The said punitive police operations and measures of repression are paid for directly by EAGM/Afrika Mashariki.

C. BACKGROUND TO THE COMPLAINT

The complainants formerly lived and worked for gain as small-scale miners, traders, peasant farmers and livestock keepers at Nyabigena and Nyabirama areas of Matongo, Nyamwaga and Kemambo Wards of Tarime District in Mara Region. The complainants lawfully carried out farming and livestock keeping as well as mining activities on lands held under their customary laws. As well as these property interests the complainants also individually or collectively owned residential and commercial properties as well as burial grounds. As artisanal or small-scale miners, the complainants had, since 1987, discovered the gold deposits at the said Nyabigena and Nyabirama areas. On or about February 1, 1988 the deposits were divided into five mining claims which were allocated to five villages namely, Kerende, Kewanja, Nyamwaga, Genkuru and Nyangoto. Between February 1988 and May 1991, the five villages completed the mining rights application processes and were granted claim titles and/or Temporary Numbers as follows: Kewanja village was granted a Temporary Right T.R. 2/88; Kerende village was granted TR 5/88; Nyangoto village was granted TR 1/90 or Claim Title 36853; Nyamwaga was granted TR 2/90 and Genkuru was granted TR 1/91. Copy of a decision of the former Commissioner for Minerals in the Ministry of Water, Energy and Minerals S.L. Bugaisa granting mineral rights to the five villages is attached and marked “E” to form part of the complaint.

Having been granted mineral rights over the five claims, the five villages sub-granted mining rights to the villagers including the complainants. The complainants and many thousands of other artisanal or small-scale miners then started gold mining operations at the said claim areas and in nearby areas by making heavy investment in construction of mine shafts, purchase of water pumps, crushers, pick axes and other mining equipment as well as feeding and caring for individual miners employed in mine shafts they owned. However, on or about August 11, 1993, EAGM/Afrika Mashariki purported to enter into an optional purchase agreement with Winani Mining Company (“Winani Mining”), a locally registered company that also held a Mineral Claim in Nyabigena area. Under the purported agreement, EAGM/Afrika Mashariki purported to secure exclusive rights to explore and purchase the Mineral Claim held by the said Winani Mining in consideration for payment of certain fees and royalties to Winani Mining. In or about early October 1994 EAGM/Afrika Mashariki carried out extensive drilling program in the claim area granted to the said Winani Mining, which was followed a year later by extensive, but illegal, drilling operations in the claims held by the five villages.

On or about August 30, 1996, former minister Shija purported to grant mining licenses known as ML 17/96 and ML 18/96 to EAGM with respect to Nyabigena and Nyabirama areas respectively. The Nyabigena license – a copy of which is attached hereto and marked “F” to form part of the complaint - purported to entitle EAGM to an area of 0.42 square kilometers but, significantly, excluded all the claims that had been granted to the five villages and to individual claim holders. LEAT and the complainants have never seen copy of the Nyabirama license and shall respectfully urge the Honorable Commissioners to issue an order requiring EAGM/Afrika Mashariki to produce copy of the said license in terms of sections 25(a) and 27(1)(b) of the 2001 Act.

Armed with the purported prospecting licenses ML 17/96 and ML 18/96 respectively, EAGM/Afrika Mashariki, and the other parties referred in Part B of the complaint exerted undue influence upon the leadership of the five villages to force them to illegally and irregularly sell the claim areas legally granted and held by the said five villages. LEAT and the complainants have never seen copy of the purported sale and shall respectfully urge the Honorable Commissioners to issue an order requiring EAGM/Afrika Mashariki to produce copy of the said license in terms of sections 25(a) and 27(1)(b) of the 2001 Act. Once the said illegal and irregular sale of the claim areas was effected, the parties referred to in Part B of the complaint pressured the complainants to cease their mining and other economic activities; vacate their mining shafts, agricultural and grazing lands, growing crops and residential and commercial buildings and other properties. Furthermore EAGM/Afrika Mashariki paid no legally recognized compensation to the complainants for these losses of property but purported to promise the complainants that the compensation due them shall be paid once EAGM/Afrika Mashariki obtain mining licenses and start mining operations at Nyabigena and Nyabirama areas.

At the request and under the supervision of the Tarime District Land Development Officer Ndimila (“Land Officer Ndimila”), between September 19 and October 23, 2000, the Evaluation Section of the Department of Lands and Natural Resources of the Mwanza City Council (“Mwanza City Council”) conducted inspections of about 1034 complainants’ properties that had been affected by the EAGM/Afrika Mashariki operations at Nyabigena for the purpose of evaluating the said properties with a view to compensating the complainants thereof. Mwanza City Council purported to determine that the 1034 complainants were entitled to some Tanzania Shillings 480,117,677.30 (an average of TShs. 464,330.40 per complainant!) as compensation for all the property losses incurred as a result of the operations of EAGM/Afrika Mashariki. LEAT and the complainants attach copy of a covering letter to the Evaluation Report prepared by Mwanza City Council to Land Officer Ndimila dated February 14, 2001 and marked “G1” to form part of the complaint. The Evaluation Report, marked “G2”, is rather too bulky to be attached to the complaint but LEAT and the complainants shall produce it to the Honorable Commissioners once the Commission opens an inquiry and initiates proceedings by way of public hearings in terms of sections 17, 18, 20 and Part V of the 2001 Act.

LEAT and the complainants contend that the evaluation exercise and the resulting Evaluation Report were prepared in ignorance of the relevant law and are, therefore illegal and null and void. In its covering letter to Land Officer Ndimila, Mwanza City Council stated that the criteria used in the evaluation exercise were “Agricultural Officers’ expertise and Ministry of Agriculture Circular Letter with Reference No. MAC.60/2 of 16/9/1992.” (“The Ministry Circular”). The Ministry Circular refers to compensation rates for growing crops and permanent trees that were passed by the Cabinet on August 15, 1992 and published as a Ministry of Agriculture Circular on September 16, 1992. According to Mwanza City Council, the Ministry Circular “was greatly considered and followed for whole exercise of Valuation (sic!) of crops.”

Closer scrutiny of the Ministry Circular reveals, however, that it was intended to be used for the year 1992/93 only! This means that the compensation rates that the Mwanza City Council purported to use with regard to the evaluation of the complainants’ properties was out of date by at least eight years. Whatever figures that Mwanza City Council came up with regarding the value of the complainants’ properties cannot be said to have constituted the true value of the properties for purposes of payment of fair, just or reasonable compensation as called for by law. Notwithstanding this serious flaw, LEAT and the complainants believe that the evaluation exercise and the Evaluation Report were prepared transparently, conscientiously and with utmost good faith.

By contrast, when the said Evaluation Report was presented to EAGM/Afrika Mashariki for the purpose of effecting payment to the complainants, EAGM/Afrika Mashariki - whose own officers had actively participated in the evaluation exercise – maliciously refused to pay the meager compensation sums that Mwanza City Council had purported to determine in relation to the 1034 complainants’ properties. Instead, EAGM/Afrika Mashariki caused Land Officer Ndimila to be removed from supervising the evaluation and compensation exercise and Land Valuer Magabe to be put in charge of that work. The complainants contend that Land Valuer Magabe has since been carrying out illegal and/or irregular evaluation of the complainants’ properties without the transparency, professionalism or good faith that had characterized the Mwanza City Council’s Evaluation Report. As a result, Land Valuer Magabe has been producing evaluation reports which purported to show that the complainants were entitled to even less amounts of compensation than the amounts determined by Mwanza City Council.

By the year 2001, the complainants and thousands of other residents and affected persons in Matongo, Kemambo and Nyamwaga Wards and in Tarime District were tired of waiting for compensation that was not forthcoming. They thus began to openly challenge the dubious rights exercised by EAGM/Afrika Mashariki at Nyabigena and Nyabirama sites and reoccupying their lands and properties. Thus on July 7, 2001, the Tarime District Council (“the District Council”) called a Full Council meeting that brought together all members of the District Council and its executive officers to discuss, inter alia, the growing crisis at Nyabigena and Nyabirama areas. The District Council also invited DC Mabiti to attend the Full Council and to respond to the members’ concerns at the growing crisis involving the complainants and thousands of other residents and affected persons on the one hand and EAGM/Afrika Mashariki on the other.

Addressing the Full Council with regard to this question, DC Mabiti described negotiations that were then underway that involved EAGM/Afrika Mashariki and the Zonal Mines Officer based in Mwanza and Commissioner Mwakalukwa. DC Mabiti, however, threw his weight behind the complainants’ demands for their fundamental rights and property interests to be respected and protected. The minutes of the Full Council meeting record DC Mabiti as saying that “notwithstanding the ongoing negotiations, he cannot remove any resident from his property/land without first paying (compensation) for the rights due to him/her. He clarified that when they (i.e. EAGM/Afrika Mashariki) entered into contracts (with the village leaders) they were required to pay the people (compensation) for their rights. He nevertheless admitted that his office had previously erred when it decided that the disputed area(s) had no minerals. He therefore admitted (sic!) that he would henceforth stand together with the people to demand their rights because they (the people) were deceived by the actions taken previously. Furthermore, the Honorable District Commissioner urged the Honorable Councilors from the areas concerned to work together in this (matter).” Copy of the minutes of the said Full Council meeting of the District Council are attached hereto and marked “H” to form part of this complaint.
Following the Full Council meeting, DC Mabiti called or caused to be called public meetings in the five villages where he called upon the complainants and thousands of other residents and affected persons to return to their settlements, mining sites, agricultural and grazing lands and to continue with their lawful economic activities, including mining, until such time as EAGM/Afrika Mashariki effects payment of compensation to them in accordance with the laws of the land. Whereupon the complainants and the other residents moved in and reoccupied the entirety of Nyabigena and Nyabirama areas and resumed their lawful economic activities. The reoccupations of the Nyabigena and Nyabirama areas would, however, not last for long. Under pressure, presumably from RC Lugoe and former minister Maokola Majogo, on or about August 2, 2001, DC Mabiti returned to the Nyabigena and Nyabirama areas and, in a public meeting held there, called on the complainants and thousands of the other residents to vacate the areas with immediate effect! The complainants and other residents and their ward and village leaders resisted this illegal order and reminded DC Mabiti of his previous statements and promises to support their lawful and legitimate demands for compensation.

On or about August 6, 2001, a heavily armed police Field Force Unit (“FFU”) squadron commanded or acting under the directions and commands of former minister Maokola Majogo, Commissioner Mwakalukwa, former Mines Officer Hassan, PRO Mbusiro, RC Lugoe, DC Mabiti, RPC Ntobi, OCD Mbelwa and OCCID Tarime invaded the complainants’ villages and, after four days of armed operations, violently drove the complainants out of their settlements and properties at Nyabigena and Nyabirama. During this violent operation, the said FFU squadron shot and wounded numerous villagers and - in collaboration with employees, workmen and/or agents of EAGM/Afrika Mashariki - destroyed the complainants’ residential and commercial houses, mine workings, equipment, farms and growing crops. In addition, as a result of the said violent and forced evictions, EAGM/Afrika Mashariki took possession of the Nyabigena and Nyabirama sites including the properties lawfully held and owned by the complainants and have, since November 2002, operated the Afrika Mashariki Mine.

At no point before, during or after the forced evictions did EAGM/Afrika Mashariki ever pay or offer to pay just, fair and reasonable compensation to the complainants for losses arising out of, or connected with, the forced evictions. At no point before, or subsequent to, the evictions did EAGM/Afrika Mashariki prepare or plan, finance or implement any resettlement or relocation plan or to provide alternative lands or settlements or alternative sources of livelihoods for the complainants. As a result, thousands of complainants, their families and dependants have been forced to live in great hardship. The combined loss suffered by the complainants as a result of these actions or omissions is conservatively estimated at Tanzania Shillings 50,920,000,000 (fifty billion, nine hundred and twenty million only) at the 1996 value of the Tanzania Shillings.

D. THE COMPLAINT

It is LEAT’s and the complainants’ contention that the parties referred to in Part B of the complaint violated the complainants’ legal rights as guaranteed by the 1979 Act and the 1998 Act. The complainants also allege violations of fundamental human rights and duties as guaranteed by the Constitution; and international law and internationally accepted human rights standards as recognized in the Universal Declaration of Human Rights, 1948 (“the Universal Declaration”); the European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950 (“the European Convention”); the Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms, 1954 (“Protocol to the European Convention”); the European Social Charter, 1965 (“the European Social Charter”); the International Covenant on Economic, Social and Cultural Rights, 1966 (“the ICESCR”); the International Covenant Civil and Political Rights, 1966 (“the ICCPR”); the American Convention on Human Rights, 1978 (“the American Convention”); the African Charter on Human and Peoples’ Rights, 1981 (“the African Charter”); and the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, 1988 (“Additional Protocol to the American Convention”). The said violations of the complainants’ legal and constitutional rights and duties and of international law are set forth in greater detail in Part E of this complaint hereinbelow.

E. LEGAL, CONSTITUTIONAL AND INTERNATIONAL LAW GROUNDS UPON WHICH THE COMPLAINT IS FOUNDED

I. THE GRANT OF MINERAL RIGHTS IN RESPECT OF THE NYABIGENA AND NYABIRAMA GOLD DEPOSITS WAS IN VIOLATION OF THE 1979 ACT AND THE 1998 ACT.

a. SUMMARY OF VIOLATION

The purported grant, by former minister Shija, of Mining Licenses ML 17/96 and ML 18/96 with respect to Nyabigena and Nyabirama areas was in violation of sections 21, 29, 37, 39 and 69 of the 1979 Act. The re-grant, by former minister Kigoda, of ML 17/96 and ML 18/96 as SML 17/96 and SML 18/96 was in violation of sections 13, 14 and 36 of the 1998 Act.

b. FACTS

The complainants discovered the gold deposits at Nyabigena and Nyabirama areas in 1987. Thereafter, as we have seen above, the complainants’ villages and some other individuals applied for, and were granted, mineral claims under the 1979 Act. The complainants and many other artisanal or small-scale miners then started gold mining operations at the said claims and in nearby areas. However, on or about August 30, 1996, former minister Shija purported to grant EAGM/Afrika Mashariki mining licenses known as ML 17/96 and ML 18/96 respectively covering the said Nyabigena and Nyabirama areas. When the 1979 Act was repealed and replaced by the 1998 Act, ML 17/96 and ML 18/96 were on February 7, 2000 re-granted by former minister Kigoda under the new Act as Special Mining Licenses SML 17/96 and SML 18/96 respectively. The grant and re-grant of the purported mining licenses and special mining licenses were illegal, null and void and of no legal effect whatsoever for the reasons enumerated hereinbelow.
c. LEGAL FOUNDATIONS

The scheme of the 1979 Act created four principal types mining rights, namely reconnaissance license, prospecting license, mining license and claims. The first three of these rights were known as “Mineral Rights” and were governed by Part III of the Act. Section 13 of the Act enjoined the Minister to grant a Mineral Right to an individual citizen of Tanzania or a company where he was satisfied that “the most efficient and beneficial use of the mineral resources of Tanganyika required … a programme of exploration and development involving substantial expenditure (of financial capital) or the use of specialist technology.” This, in effect, meant that only persons or companies with big capital outlays and were thus capable of acquiring plants and machinery and to use modern mining technologies were to be the sole beneficiaries of the grants of Mineral Rights.

“Claims”, on the other hand, were granted under, and governed by, Part IV of the 1979 Act and were reserved for persons of more modest means, particularly artisanal or small-scale miners such as the complainants in this instance. Section 69(1) thus provided that “where the Minister considers that it would be in the public interest to encourage prospecting and mining for minerals in any area of land by methods not involving substantial expenditure or the use of specialist technology he may … designate that area and … prescribe any mineral in relation to the area.” The language of this provision leaves no doubt that artisanal or small-scale miners such as the complainants were intended to be the primary beneficiaries of mining or prospecting rights in the designated areas. Unlike rich multinational corporations such as EAGM/Afrika Mashariki and Placer Dome, small-scale miners employ “methods not involving substantial expenditure or … specialist technology” in their mining operations.

The 1979 Act expressly prohibited the grant of any Mineral Rights in all areas that were subject to claims (see section 21(1)(c) relating to reconnaissance licenses; section 29(1)(c) relating to prospecting licenses; and section 39(1)(b) relating to mining licenses.) The Act required, however, that claims could only be granted in areas that the Minister had designated in a notice published in the Gazette, and in respect of minerals prescribed in the same notice (s. 69(1). Moreover, the Minister had powers to vary or revoke the notice published pursuant to this section; but he could do so by way of another notice similarly published in the Gazette (see section 69(2).

The stringent provisions of section 69 sparked considerable legislative activity that directly and beneficially impacted the complainants. That legislative activity continued throughout the 1980s right up to 1996 when former minister Shija purported to grant ML 17/96 and ML 18/96 to EAGM/Afrika Mashariki. The 1979 Act came into force on December 31, 1979. Less than three weeks later the then Minister for Water, Energy and Minerals, Al-Noor Kassum, exercised his powers under section 69 with the promulgation of the Mining (Designated Areas) Notice, 1980, Government Notice No. 6 of 1980 (“the 1980 Notice”). For ease of reference of the Honorable Commissioners, a copy of the 1980 Notice is attached hereto and marked “I” to form part of the complaint. The 1980 Notice, published on January 18, 1980, inter alia designated the entire area of Mara Region for which prospecting and mining for gold “by methods not involving substantial expenditure or the use of specialist technology” was to be encouraged. This was the earliest and clearest legal basis for the complainants’ presence and future mining operations at the Nyabigena and Nyabirama goldfields. The designation and prescription had the effect of precluding these two areas and any other area of Tarime District or Mara Region from being allocated for large-scale mining for gold by entities such as EAGM/Afrika Mashariki and Placer Dome.

By 1982 Minister Kassum had ceased to be the Minister. That same year, Jackson Makweta, his replacement, promulgated the Mining (Designated Areas)(Amendment) Notice, 1982, (“the 1982 Notice”) which was published on December 17, 1982 as Government Notice No. 154 of 1982. For ease of reference of the Honorable Commissioners, a copy of the 1982 Notice is attached hereto and marked “J” to form part of the complaint. Though it revoked the 1980 Notice, the 1982 Notice retained the entirety of Mara Region as a designated area for which prospecting and mining for gold was prescribed. The 1982 Notice for its part lasted for as long as Makweta remained the Minister which, incidentally, was for about one year. Upon becoming the new Minister, Paul Bomani promulgated the Mining (Designated Areas)(Amendment) Notice, 1983, (“the 1983 Notice”) which was published on January 6, 1984 as Government Notice No. 2 of 1984. Like the 1982 Notice it revoked, The 1983 Notice also retained Mara region in its entirety as a designated area. For ease of reference of the Honorable Commissioners, a copy of the said 1983 Notice is attached hereto and marked “K” to form part of the complaint.

When yet another cabinet reshuffle brought Al-Noor Kassum back as Minister in 1984 he immediately promulgated the Mining (Designated Areas)(Amendment) Notice, 1984 (“the 1984 Notice”) which was published on February 1, 1985 as Government Notice No. 34 of 1985. This Notice amended the 1983 Notice – with which it was required to be construed together - so that it removed some 605 square kilometers of the North and East Mara areas from the category of designated areas prescribed for gold mining. The areas removed included Nyabigena and Nyabirama in Tarime District and Mineral Rights could now be allocated to large-scale mining operations of the type now undertaken by EAGM/Afrika Mashariki and Placer Dome. For ease of reference of the Honorable Commissioners, a copy of the said 1984 Notice is attached hereto and marked “L” to form part of this complaint.

It then took over four years for the Minister to exercise his section 69 powers. In 1988, Al-Noor Kassum promulgated the Mining (Designated Areas) Notice, 1987 (“the 1987 Notice”), which was published on July 22, 1988 as Government Notice No. 230 of 1988. The 1987 Notice revoked the 1983 Notice but reinstated the entirety of Mara Region into the list of designated areas. Although it did not expressly touch the 1984 Notice, the 1987 Notice must be taken to have revoked the former Notice by necessary implication. According to N.S. Bindra’s Interpretation of Statutes (8th Edn., The Law Book Company (P) Ltd., Allahabad, 1997, pp. 823-824), an implied repeal of an earlier law can be inferred only where there is the enactment of a later law which had the power to override the earlier law and is totally inconsistent with the earlier law. According to the learned author, “this is a logical necessity because the two inconsistent laws cannot be both valid without contravening the principle of contradiction. The later laws abrogate earlier contrary laws.” With this principle in mind, LEAT and the complainants respectfully submit that since the 1984 Notice was repealed by implication, the 1987 Notice had the effect of bringing the Nyabigena and Nyabirama areas back into the fold of designated areas. For ease of reference of the Honorable Commissioners, a copy of the said 1987 Notice is attached hereto and marked “M” to form part of this complaint.

The issue of the legal status of the Nyabigena and Nyabirama areas was answered once and for all in 1996 when the Mining (Designated Areas)(Amendment) Notice, 1996 (“the 1996 Notice”) was promulgated by former minister Shija. The 1996 Notice - published on June 14, 1996 as Government Notice No. 106 of 1996 – is attached hereto and marked “O” and the complainants respectfully urge the Honorable Commissioners to read it together with the complaint. The sole purpose for promulgating the 1996 Notice was apparently to confirm the legal status of Nyabigena and Nyabirama areas as “designated areas.” Significantly, the 1996 Notice came about two months before former minister Shija purported to grant ML 17/96 and ML 18/96 to EAGM/Afrika Mashariki but the Notice made Nyabigena and Nyabirama designated areas retrospectively from February 1, 1991!

It is clear from the exposition of the relevant provisions of the 1979 Act and subsidiary legislation made under it as shown hereinabove that the Nyabigena and Nyabirama areas in Tarime District of Mara Region had, throughout the period leading up to, including and subsequent to, the 1996 purported grants, been set aside for the sole benefit and use of small scale miners including the complainants. We, therefore, respectfully invite the Honorable Commissioners to draw the only reasonable conclusion, and to share our belief, that any Mineral Rights that former minister Shija purported to grant to EAGM/Afrika Mashariki with regard to the two areas were illegal, null and void and of no legal effect whatsoever.

There are more illegalities committed under both the 1996 Act and the 1998 Act. As we have seen above, former minister Kigoda purported to re-grant ML 17/96 and ML 18/96 as SML 17/96 and SML 18/96 respectively. There is, however, no indication in the Environmental Management Plan prepared by EAGM/Afrika Mashariki that the company was ever granted any prior prospecting licenses in respect of the two concessions. This violated the express requirements of the 1979 Act. Section 37(1)(a) and (b) of the 1979 Act had a mandatory requirement that “only … the registered holder of a prospecting license” could apply for, and be granted, a mining license. Furthermore, such license could be granted “only in respect of land subject to the prospecting license.” Now, the copy of ML 17/96 that was granted to EAGM/Afrika Mashariki by former minister Shija claims that the Nyabigena concession was granted after EAGM had applied for mining license “pursuant to section 37 of the Mining Act, 1979….” There is no mention of the fact that the mining license could only be granted to a holder of a prospecting license and in respect of land that was subject of a prospecting license. This means that at the very least the Nyabigena concession was granted to EAGM/Afrika Mashariki in violation of the above provisions of the 1979 statute.

If, as we have shown, the grant of the two mining licenses was legally impermissible under the 1979 legislation, their subsequent transformation into special mining licenses SML 17/96 and SML 18/96 under the new Act was just as legally dubious. Section 36(1)(a) of the1998 statute mandated that only an “entitled applicant”, i.e. “the holder of a prospecting license” was entitled – on application to the Minister – “to the grant of a special mining license … for the mining within the prospecting area … of minerals to which the prospecting license applies.” There is no evidence to indicate that EAGM/Afrika Mashariki was a holder of a prospecting license to qualify as an “entitled applicant” within the legal meaning of that term, thereby making its current operations legally tenuous.

To be sure, under the 1998 Act persons deemed not to be entitled applicants could still apply for, and be granted, the special mining license. However, both the application for, and the grant of, any such license by such persons could only be in respect of “any vacant area which is not part of a reserved area or in any area which is subject only to a prospecting license for building materials or gemstones.” Reserved areas are defined by the Act as areas designated for grant of prospecting or mining rights by tender or areas exclusively reserved for Tanzanian citizens or bodies corporate controlled by Tanzanian citizens. There is no indication in any of the extensive documentary record we have reviewed to show that EAGM/Afrika Mashariki ever acquired the two concessions by way of a tender. Indeed, acquisitions of mineral rights by way of tender are an innovation of the 1998 statute, having been unknown under the regime of the 1979 legislation. The inevitable conclusion is that EAGM/Afrika Mashariki have been awarded mineral rights over this area in contravention of the mining law currently in force.

d. DID THE LEGAL STATUS OF NYABIGENA AND NYABIRAMA AREAS CHANGE BY WAY OF CANCELLATION AND SURRENDER OF A CLAIM?

In Part D of the complaint we cited a purported agreement between EAGM/Afrika Mashariki and Winani Mining whose copy is attached hereto and marked “P” to form part of the complaint. We are aware of other purported agreements between EAGM/Afrika Mashariki on the one hand, and one Isaya Marwa of Nyangoto Village and Village Chairmen of Nyangoto, Kewanja, Nyamwaga, Kerende and Genkuru on the other hand under which the said Isaya Marwa and the five Village Chairmen purported to agree to relinquish their claim areas in favour of EAGM/Afrika Mashariki in exchange for certain promises and covenants made by EAGM/Afrika Mashariki. LEAT and the complainants have never seen copies of the said purported agreements and shall respectfully urge the Honorable Commissioners to issue an order requiring EAGM/Afrika Mashariki to produce copies of the said purported agreements in terms of sections 25(a) and 27(1)(b) of the 2001 Act.
Without in any way touching on the powers or bona fides of the persons who purported to act on behalf of the five villages; or regarding the promises and covenants contained in the said agreement, we are of the considered view that by purporting to change the legal status of the Nyabigena and Nyabirama areas, or of any part of Tarime District and Mara Region, that agreement was illegal, null, void and of no legal effect whatsoever. The reason is simple: Any change in the legal status of a designated area to a non-designated area was required to be, and should have been, made by the Minister under the authority, and within the permissible procedural bounds, of section 69 of the 1979 Act. This was not done with the result that the purported agreement by the said parties to sell their claim areas to EAGM/Afrika Mashariki remain outside the bounds of legality! LEAT and the complainants also wish to draw the attention of the Honorable Commissioners to section 23 of Law of Contract Ordinance Cap. 433 that outlaws contracts that contravene the laws of the land.

LEAT and the complainants are also aware that on August 12, 1999 the Commissioner for Lands in the Ministry of Lands and Human Settlement Development (“Commissioner for Lands”), ostensibly acting under section 6 of the Land Ordinance Cap. 113, purported to grant EAGM/Afrika Mashariki a right of occupancy over an area in Nyangoto and Matongo villages measuring some 358.07 hectares. Pursuant to the purported right of occupancy, EAGM/Afrika Mashariki registered the purported grant as Certificate of Occupancy No. 12435. LEAT and the complainants have never seen copy of the Certificate of Occupancy and shall respectfully urge the Honorable Commissioners to issue an order requiring EAGM/Afrika Mashariki to produce copy of the said Certificate in terms of sections 25(a) and 27(1)(b) of the 2001 Act.

The complainants contend that the land the subject of the purported grant of the Right of Occupancy No. 12435 was also held and owned by some of the complainants as deemed rights of occupancy as defined and recognized by the Land Ordinance Cap. 113, then in force. As LEAT and the complainants argue in paragraph III below, the purported grant by the Commissioner for Lands of the land known as Right of Occupancy No. 12435 in Nyangoto and Matongo villages of the Nyabirama area was illegal, null and void and of no legal effect whatsoever.

e. DID REPEAL OF THE 1979 ACT AND ITS REPLACEMENT BY THE 1998 ACT VALIDATE EAGM/AFRIKA MASHARIKI’S LICENSES?

In 1998, the 1979 Act was repealed and replaced by the new 1998 Act (see section 114 of the 1998 Act). The 4th Schedule, made under section 114(2) of the latter Act, provided for savings and transitional provisions in respect of the repeal of the former Act. Under paragraph 2 of the 4th Schedule, “any person who … was the holder of a Mineral Right, a Claim or Prospecting Right under the 1979 Act (was) deemed to have become … the holder of Provisional License.” Paragraph 4(1) entitled holders of the Provisional License to the immediate grant of a mineral right under the 1998 Act. It is under these provisions that EAGM/Afrika Mashariki presumably applied for, and were granted SML 17/96 and SML 18/96 over the Nyabigena and Nyabirama areas on February 7, 2000. The obvious question that arises given the re-grants of SML 17/96 and SML 18/96 is whether the repeal of the 1979 Act and its replacement by the 1998 Act had the effect of validating the purported Mineral Rights illegally granted to EAGM/Afrika Mashariki?

The answer to this question is, in our considered opinion, negative. In our view, the savings and transitional provisions cited above do not have the effect of validating any illegal act committed against the express provisions of the 1979 Act. The purported Mineral Rights granted to EAGM/Afrika Mashariki were null and void ab initio, i.e. they did not exist in law from the very beginning. The Latin maxim nemo dat quid non habet, meaning “no man can give that which he does not possess” comes readily to mind here. Since the Minister did not have a lawful license to grant to EAGM/Afrika Mashariki with respect to the Nyabigena and Nyabirama concessions, the 1998 Act cannot be said to have validated the purported licenses for the simple reason that the purported licenses did not exist in the eyes of the law.

f. DOES REPEAL OF THE 1979 ACT BAR THE COMMISSION’S INVESTIGATIONS?

We believe, and we respectfully urge the Honorable Commissioners to share that belief, that the repeal and replacement of the 1979 Act cannot act as a bar to an investigation by the Commission of acts or omissions committed again that Act when it was in force. Section 14 of the Interpretation of Laws and General Clauses Act, 1972, No. 30 of 1972 provides that where an Act repeals any provision of another Act, “… the repeal shall not … affect any investigation, legal proceedings, or remedy in respect of any … right, privilege, obligation, liability, penalty, forfeiture, or punishment … and any such investigation, legal proceedings, or remedy may be instituted, continued or enforced, and any such penalty, forfeiture, or punishment may be imposed as if the repealing Act had no been enacted.”

g. LEGAL CONCLUSIONS

This analysis makes it clear that regardless of the nature of purported Mineral Rights granted to EAGM/Afrika Mashariki, the purported Rights should never have legally been granted in respect of the Nyabigena and Nyabirama gold deposits or in respect of any other gold deposit in Tarime District or Mara Region. The only reasonable conclusion to be drawn, and that we respectfully urge the Honorable Commissioners to draw, is, therefore, that the purported Mineral Rights issued to EAGM/Afrika Mashariki or its successors-in-title over the two areas were granted in contravention of the provisions of the 1979 Act and, of the subsidiary legislation made under section 69 of that Act as set forth hereinabove. Such purported Rights are null and void and are thus of no legal effect. Furthermore, the 1998 Act could not, and cannot be legally and reasonably held to, have validated the illegal grants of purported Mineral Rights to the companies the subject of this complaint. And finally, the mere fact that the 1979 Act was repealed after the events the subject of this complaint does not act, as we have shown, as a bar to an investigation of violations of that Act by the Commission.

II. THE ENTRY INTO, AND OCCUPATION OF, THE NYABIGENA AND NYABIRAMA AREAS VIOLATED THE 1979 ACT, THE CONSTITUTION AND INTERNATIONAL HUMAN RIGHTS LAW.

a. SUMMARY OF VIOLATION

EAGM/Afrika Mashariki were in violation of the significant "restrictions on exercise of (mineral) rights" that section 48 of the 1979 Act had imposed upon holders of Mineral Rights. They were also in violation of Article 21(1) of the Constitution; Article 13(1) of the African Charter; Article 23 of the American Convention; and Article 21 of the Universal Declaration.

b. FACTS

Apart from small-scale mining, the complainants had lived at Nyabigena and Nyabirama areas and worked for gain as traders, peasant farmers and livestock keepers. The complainants engaged in farming and livestock keeping on lands acquired and held under their customary laws. As well as these property interests the complainants also individually or collectively owned residential and commercial properties as well as burial grounds and places of worship. On or about August 30, 1996 former minister Shija purported to grant Mineral Rights to EAGM/Afrika Mashariki. Thereafter EAGM/Afrika Mashariki in collaboration with the parties referred in Part B of the complaint started to forcibly evict the complainants and thousands of other residents of Nyabigena and Nyabirama areas. EAGM/Afrika Mashariki and the parties referred to in Part B of the complaint promised to pay the complainants compensation in accordance.

When, after five years, no compensation was forthcoming, the complainants – with the active support and encouragement of DC Mabiti – returned to their lands and properties to continue with their lawful activities. However, on or about August 6, 2001, DC Mabiti returned to Nyabigena and Nyabirama areas and ordered the complainants to vacate their lands and properties. When the complainants resisted DC Mabiti and the parties referred to in Part B started to forcibly evict the complainants from the two areas. At no point prior to, or during, the evictions did EAGM/Afrika Mashariki seek any prior written consent whatever from the complainants before forcibly entering into their settlements, agricultural lands, burial grounds or places of worship. Furthermore, since no prior written consent was ever sought, the complainants had no opportunity to reasonably or unreasonably withhold it. It cannot be said, therefore, that the Minister dispensed with the consent requirement to allow EAGM/Afrika Mashariki to enter into and occupy the Nyabigena and Nyabirama areas.

c. LEGAL FOUNDATIONS

Section 48(1)(a)(i) of the 1979 Act prohibited the holder of a Mineral Right from exercising any of his rights in respect of any land dedicated as a place of burial except with the prior written consent of the Minister for the time being responsible for burial places. The holder of a Mineral Right was similarly prohibited from exercising any of his rights, without a prior written consent of the occupier thereof, in respect of any land which is the site of, or which is within 200 yards of, any inhabited, occupied or unoccupied house of building (s. 48(1)(b)(i). Prior written consent of the occupier thereof was likewise mandatory for a holder of a Mineral Right before he could exercise any of his rights in respect of any land within 50 yards of land which has been cleared or ploughed or otherwise prepared in good faith for the growing of agricultural crops or upon which agricultural crops are growing (s. 48(1)(b)(ii). And lastly, a holder of a Mineral Right could not exercise his rights without the prior written consent of the occupier thereof in respect of any land from which, during the year immediately preceding agricultural crops have been reaped (s. 48(1)(b)(iii).

It is clear from the above provisions that the 1979 Act had intended to give land-owners such as the complainants and other interested parties an opportunity to participate in decision-making processes regarding the exercise of Mineral Rights that may have significant impacts on their property rights and other interests in the land the subject of a Mineral Right. That law provided an important avenue for interested parties such as the complainants to even object to mining developments that threatened to adversely impact their rights or interests. Moreover, such objections could legally be upheld by the Minister if, in his opinion, they were reasonable. For the Minister was, in this regard, empowered to dispense with the consent requirement where he thought the consent, where sought, was being unreasonably withheld (see s. 48(1)(b).

The right to participate in decision-making processes is also an important constitutional right. Article 21(2) of the Constitution provides that “every citizen has a right and freedom to participate fully in making the decisions that affect him, his life or that affect the nation.” At the very minimum, EAGM/Afrika Mashariki were obliged not o enter and occupy the complainants’ settlements, agricultural lands, mining areas, places of burial and worship without first seeking the prior written consent of the complainants. Without in any way touching on the duty of the Minister to see to it that EAGM/Afrika Mashariki respected the law by seeking the requisite consent, the Minister was, at the very minimum, obliged not to behave as if the consent requirements did not exist.

d. LEGAL CONCLUSIONS

We believe, and we respectfully urge the Honorable Commissioners to share in our belief, that the entry and occupation by EAGM/Afrika Mashariki and the continued occupation by the said company of the complainants settlements, agricultural lands, mining shafts and places of worship without seeking and obtaining the prior written consent of the complainants constituted a violation of the 1979 Act as well as of the constitutional right to participate in decision-making processes with regard to matters that affected the complainants. Likewise, the entry into, and the continuing occupation of, the complainants’ burial grounds by EAGM/Afrika Mashariki without first seeking and obtaining a prior written consent of the minister responsible for burial grounds was a violation of the express provisions of the 1979 Act.

III. FAILURE TO PAY COMPENSATION IS VIOLATIVE OF THE 1979 ACT, THE 1998 ACT, THE CONSTITUTION AND INTERNATIONAL HUMAN RIGHTS LAW

a. SUMMARY OF VIOLATION

The failure of, or unwillingness by, EAGM/Afrika Mashariki to pay compensation to the complainants for losses and injury arising from the 1996 and 2001 forced evictions constitutes a violation of section 81(1) of the 1979 Act; Article 24 of the Constitution; Article 17 of the Universal Declaration; Article 1(2) of the ICESCR; Articles 14, 21(1) and 21(2) of the African Charter; Article 1 of the Protocol to the European Convention; and Article 21 of the American Convention.

b. FACTS

It is the complainants’ case that at no point prior to, or during, or after, the evictions did the parties referred to in Part B hereinabove pay, or offer to pay, the complainants fair and reasonable compensation for loss of agricultural and grazing lands and growing crops; destruction of burial grounds and places of worship; destruction of settlements including residential and commercial property; expropriation of mineral rights and investment in mining equipment, machinery and mining shafts; and loss of income or profits generated through employment in small-scale mining operations. The complainants were also not compensated for the great hardship and disturbance caused them by evictions carried out in such a short notice. Nor were they compensated for accommodation, transportation and other costs attendant to their forced removal from their settlements.

The combined result of the actions or omissions of the parties referred to in Part B hereinabove have led to the impoverishment of the complainants as a result of expropriation of agricultural and grazing lands; destruction of residential and commercial property and settlements; expropriation of investment in mining shafts, machinery and equipment and loss of employment opportunities. The complainants have also suffered loss arising from the failure of the parties referred to in Part B to provide comparable or better settlements; comparable or better sources of income and livelihood in the form of economic activities and employment opportunities. The combined loss suffered by the complainants as a result of these actions or omissions is conservatively estimated at Tanzania Shillings 50,920,000,000 (fifty billion, nine hundred and twenty million only) at the 1996 value of the Tanzania Shillings.

c. LEGAL FOUNDATIONS

The right to the use, enjoyment and protection of private or communal property is one of most cherished of fundamental rights. Such is the cardinal importance of this right that it has been guaranteed in almost all domestic legislation pertaining to property matters and in international human rights norms and statutes. Thus as the Court of Appeal of Tanzania held in Attorney General vrs. Lohay Akonaay and Another [1995] TLR 80, “customary or deemed rights in land, though by their nature are nothing but rights to occupy and use the land, are nevertheless real property protected by the provisions of Article 24 of the Constitution … and their deprivation … without compensation is prohibited by the Constitution.” These rights cannot - as the Court of Appeal stated in Lekengere Faru Parutu Kamunyu and Others vrs. Minister for Natural Resources and Tourism and Another, Civil Case No. 53 of 1998, a case relating to the forced evictions of the Maasai pastoralists from Mkomazi Game Reserve - be revoked or transformed into other types of rights without first being compulsorily acquired by the President under the procedure and for the purpose and subject to payment of compensation as stipulated under Part II of the Land Acquisition Act, 1967, Act No. 47 of 1967 (“the 1967 Act”).

The 1979 had also guaranteed the property rights of the complainants in no uncertain and unambiguous terms. Section 81(1) which related to "compensation for disturbance of rights", etc. stated that: "Where, in the course of reconnaissance, prospecting or mining operations, any disturbance of the rights of the lawful occupier of any land or damage to any crops, trees, buildings, stock or works thereon is caused, the registered holder of the Mining Right or the holder of the prospecting right or claim ... is liable to pay to the lawful occupier fair and reasonable compensation in respect of the disturbance or damage according to the respective rights or interests ... of the lawful occupier in the property concerned."

This provision afforded protection to the full panoply of property rights in mining “works”, agricultural lands and crops thereon, residential and commercial buildings and burial grounds and places of worship. The complainants’ property rights are also guaranteed and protected by the Constitution whose Article 24(1) provides that every person has a right to own property and a right to the protection of that property in accordance with the law. Article 24(2) prohibits deprivation of property for the purposes of nationalization or for other purposes without adequate compensation recognized by law. The full range of the property rights that were protected by the 1979 Act and the Constitution covered not only what are known in law as “unexhausted improvements” but also the land itself. In Lohay Akonaay, the Court of Appeal of Tanzania held that fair compensation “is not confined to unexhausted improvements. [W]here there are no unexhausted improvements but some effort has been put into the land by the occupier, that occupier becomes entitled to protection under Article 24(2) of the Constitution and fair compensation is payable for the deprivation of property and land.”

Private or communal property rights are also well settled in international law. For example, under Article 17 of the Universal Declaration, “everyone has the right to own property alone or in association with others”; and that “no one shall be arbitrarily deprived of his property.” Article 1(2) of the ICESCR extends the scope of property rights that are afforded protection to include rights over natural wealth and resources. It states that “all peoples may, for their own ends, freely dispose of their natural wealth and resources (and) … in no case may a people be deprived of their means of subsistence.” Property rights are afforded protection in even more generous terms by the African Charter. Under Article 14, for instance, “the right to property shall be guaranteed (and) it may only be encroached upon in the interest of public need or in the general interest of the community and in accordance with the provisions of appropriate laws.” Like the ICESCR, Article 21 of the African Charter has an expansive notion of property rights that includes other wealth and natural resources. So much so that “all peoples shall freely dispose of their wealth and natural resources”; which right “shall be exercised in the exclusive interest of the people”; and “in no case shall a people be deprived of it.”

The protection of property rights is also well settled in the European human rights law. Under Article 1 of the Protocol to the European Convention, “every natural or legal person is entitled to the peaceful enjoyment of his possessions (and) no one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by general principles of international law.” Finally, the American Convention also provides for the protection of property rights. Under Article 21 of the Convention, “everyone has the right to the use and enjoyment of his property.” Although the law may subordinate such use and enjoyment, “no one shall be deprived of his property except upon payment of compensation, for reasons of public utility or social interest, and in the cases and according to the forms established by law.”

d. LEGAL CONCLUSIONS

Following from the above elucidation of the legal foundations of the complainants’ rights to property, the parties referred to in Part B of the complaint were obliged, at the very minimum, not to encroach onto the property rights of the complainants. Having decided to encroach onto the said property rights, the parties referred to in Part B of the complaint were obliged, at the very minimum, to pay fair and reasonable compensation required of them under both the domestic and international law as amply demonstrated above. None of this was done. Therefore, there is no doubt, and we respectfully urge the Honorable Commissioners not to entertain any, that the complainants’ property rights, so generously and amply guaranteed in Tanzanian law as well as in international law, were violated by the parties referred to in Part B of the complaint.

IV. THE FORCIBLE ENTRY INTO, AND OCCUPATION OF, NYABIGENA AND NYABIRAMA AREAS CONSTITUTED VIOLATION OF THE RIGHT OF EQUAL PROTECTION OF THE LAWS.

a. SUMMARY OF VIOLATION

The parties referred to in paragraphs 2, 3, 4, 5, 6, 8, 9 and 10 of Part B of this complaint were obliged, as public officers with legal mandates to ensure that the legal and constitutional rights of the complainants were protected by the law. If these parties felt there was a matter in dispute between them and the complainants or between the complainants and the parties referred to in paragraphs 1 and 2 of Part B of this complaint they should have referred the dispute to the courts of law or other legally constituted dispute settlement organs as called for by article 13(3) of the Constitution. The right of equal protection of the laws is also firmly entrenched in international human rights law and treaties that Tanzania is a party to. (See Articles 7 and 10 of the Universal Declaration; Article 6(1) of the European Convention; Article 14 of the International Covenant on Civil and Political Rights (“the ICCPR”); Article 8(1) of the American Convention; and Article 3 of the African Charter.)

b. FACTS

Between August and September 1996, the parties referred to in Part B of the complaint pressured the complainants to vacate their settlements. Later in August 2001, these parties forcibly evicted the complainants from Nyabigena and Nyabirama areas. There were no judicial proceedings instituted against the complainants at any point prior to the evictions nor were the parties referred to in Part B hereinabove possessed of any lawful order permitting the forcible eviction of the complainants, their families and dependants. Consequently, the evictions appear to have been carried out extra-judicially and illegally.

c. LEGAL FOUNDATIONS

Article 13(3) of the Constitution stipulates that the rights, duties and interests of every person or community of persons shall be protected and determined by courts of law or some other competent authority established by law. The right of equal protection of the laws has long occupied a central place in international human rights law. Article 7 of the Universal Declaration entrenches the right of equality before law, while Article 8 grants the right to an effective remedy by competent national tribunals for acts violating the fundamental rights granted by the Constitution. Article 10 for its part entitles every person to a fair and public hearing by an impartial and independent tribunal. Similarly, the right of equal protection of the laws is firmly entrenched in almost similar language under Article 6(1) of the European Convention; Article 14 of the International Covenant on Civil and Political Rights (“the ICCPR”); Article 8(1) of the American Convention; and Article 3 of the African Charter.

d. LEGAL CONCLUSIONS

At the very minimum, the parties referred to in Part B of the complaint were obliged to present their dispute with the complainants before the courts of law or some other competent, impartial and independent tribunal for a determination of their respective rights and duties. Summary and extra-judicial evictions of the complainants were a violation of their constitutional right to equal protection of the laws. It was also a violation of the equal protection of the laws provisions enunciated in the international human rights instruments set forth hereinabove.

V. VIOLATION OF THE RIGHT TO LIFE

a. SUMMARY OF VIOLATION

The forcible eviction of the complainants, the expropriation of their property in mining shafts, agricultural lands, residential and commercial properties deprived the complainants of their livelihoods. Thus their right to life as recognized by Article 14 of the Constitution; Article 3 of the Universal Declaration; Article 6(1) of the ICCPR; Article 12 of the ICESCR; Article 2(1) of the European Convention; Article 4(1) of the American Convention; and Article 4 of the African Charter was violated.

b. FACTS

The complainants were dependent for substantial part of their livelihoods upon the significant investment they had made in gold mining shafts, water pumps, crushers and other mining equipment. Small-scale mining was also a major source of employment for thousands of people including the complainants. The other major source of livelihoods for the complainants was their ownership of agricultural and grazing lands, agricultural crops, and residential and commercial property. These were the complainants’ sole sources of livelihoods for sustenance of their lives and they were lost without fair, just and reasonable compensation.

The combined result of the actions or omissions of the parties referred to in Part B hereinabove have led to the impoverishment of the complainants. Whereas they were gainfully employed prior to their evictions, they now suffer from serious problems of unemployment. Whereas they used to grow their own food in their own agricultural lands they are now landless and have to eke a precarious living doing odd jobs or being dependent on other people. Whereas before eviction they were owners of their own homes, these were demolished and now the complainants live in overcrowded and dilapidated shacks and mud and wattle hovels. Whereas they once were prosperous mineshaft owners and traders they are now penniless squatters.

c. LEGAL FOUNDATIONS

The right to life is one of the most cherished of all fundamental rights and freedoms. That is why, and rightly so, it is found in almost all human rights instruments and constitutional documents in the world. Article 14 of the Constitution declares in no uncertain terms that every person has a right to live and to be afforded protection of his life by society in accordance with the law. The Universal Declaration is equally clearer when in states simply that “everyone has the right to life, liberty and security of person.” (See Art. 3) In even more generous terms, Article 4 of the African Charter enunciates that “human beings are inviolable.” Consequently, “every human being shall be entitled to respect for his life and integrity of his person.” In short, “no one may be arbitrarily deprived of this right.” Similar wording is used in the ICESCR to elucidate the importance of the right to life. (See Art. 6) The European Convention also prohibits deprivation of the right to life except in the execution of a sentence of a court of law following a conviction in a crimes case. (See Art. 2(1) similar exceptions are to be found in the American Convention. (See Arts. 4(1) and 4(2) of that Convention).

Although the right to life as expounded in international human rights law and in constitutional texts has been taken to mean that what is protected is the physical or biological existence, it has, in practice, been broadly interpreted to mean all attributes that make human life worth living. It has also been taken to encompass all the necessary preconditions that make life possible. It is in this sense that in Olga Tellis vrs. Bombay Municipal Corporation and Others, the Supreme Court of India held that the right to life includes the right to livelihood. The Supreme Court argued that “if the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation.” This position is also found, even though implicitly, in Article 12 of the ICESCR that recognizes the right of everyone “to the enjoyment of the highest attainable standard of physical and mental health.”

d. LEGAL CONCLUSIONS

At the very minimum, the parties referred to in Part B of the complaint were obliged not to deprive the complainants of their sole sources of livelihoods that their lives depended on. Failing in this, the parties referred to in Part B of the complaint were obliged to pay fair, just and reasonable compensation that would enable the complainants to obtain similar or better alternative livelihoods. The parties referred to in Part B herein failed to discharge these obligations with the result that the complainants have been forced to live in penury and in great hardship. The actions or omissions of the parties referred to in Part B have, thus, undermined the lives and physical and mental well-being of the complainants. Thus, the right to life as guaranteed the complainants by the constitutional and international human rights instruments reviewed above has been abrogated.

VI. VIOLATION OF THE RIGHT TO WORK

a. SUMMARY OF VIOLATION

The complainants were gainfully employed as small-scale miners, peasant farmers, traders and business owners. By forcibly evicting them from their lands, settlements and expropriating their properties without recompense, the parties referred to Part B violated the complainants’ right to work and earn an honest living. The actions or omissions of the parties referred to Part B of the complaint are inconsistent with Article 22(1) of the Constitution; Article 23(1) of the Universal Declaration; Article 6 of the ICESCR; Part I(1) and Articles 1(1) and 1(2) of the European Social Charter (“the European Social Charter”); Article 6(1) of the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (“Additional Protocol to the American Convention”); and Article 15 of the African Charter.

b. FACTS

Artisanal or small-scale mining has historically been a major source of gainful employment in Tanzania, employing potentially millions of people in mining and related economic activities. With regard to the Nyabigena and Nyabirama areas, small-scale gold mining was a major source of employment for thousands of people including the complainants. The other major source of employment for the complainants was agriculture and livestock keeping and commercial activities. These sources of employment were lost without fair, just and reasonable compensation, with the result that the complainants have been condemned to a life of unemployment and poverty.

c. LEGAL FOUNDATIONS

The fundamental right to work is founded on a secure pedestal in both constitutional and international law. Article 22(1) of the Constitution declares simply and clearly that every person has a right to work. The African Charter expands this right further, stating in Article 15 that the right to work must be enjoyed “under equitable and satisfactory conditions.” This is further expanded in the Additional Protocol to the American Convention when it states that the right to work “includes the opportunity to secure the means of living a dignified and decent existence by performing a freely elected or accepted lawful activity.” (Art. 6(1).

Perhaps the most extensive and elaborate provisions on the right to work are to be found in the European Social Charter. Under clause 1 of Part I to that Charter, everyone is entitled to the opportunity to earn his living in an occupation freely entered upon. In addition, the states parties accepted as their “primary aims and responsibilities” the achievement and maintenance of a high and stable level of employment; and to protect effectively the right of the worker to earn his living in an occupation freely entered upon. (See Art. 1(1) and (2). The right to work is also recognized in ICESCR whose Article 6(1) stipulates that right to include “the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts.” And of course the earliest enunciation of this right is to be found in the Universal Declaration, when it solemnly stated that “everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment” (art. 23(1).

d. LEGAL CONCLUSIONS

The complainants had freely chosen small-scale gold mining, agriculture, animal husbandry and commercial activities as their employment at the Nyabigena and Nyabirama area. These, as we have amply shown, were lawful activities. At the very least, the parties referred to in Part B of the complaint should have supported the self-employment activities of the complainants. At the very least these parties should not have taken the action of forcibly evicting the complainants from their sources of employment, thereby violating their right to work as guaranteed in constitutional and international law. By forcibly expelling the complainants in the manner described above, the parties referred in Part B of the complaint were thus in clear violation of both the constitutional and international law as set forth above.

VII. VIOLATION OF THE RIGHT TO SHELTER/HOUSING

a. SUMMARY OF VIOLATION

By forcibly evicting the complainants and destroying their houses, the parties referred to in Part B of the complaint violated the right to adequate housing guaranteed by Articles 14 and 24 of the Constitution; Articles 4, 14, 16, 18 and 22 of the African Charter; Articles 11 and 12 of the ICESCR; Articles 3, 17 and 25 of the Universal Declaration; Article 6(1) of the ICCPR; Article 2(1) of the European Convention; Article 1 of the Protocol to the European Convention; Article 16 of the European Social Charter; and Articles 4(1) and 21 of the American Convention.

b. FACTS

The complainants individually or collectively owned residential houses that provided them with shelter. On or about August 30, 1996 and in August 2001, the parties referred in Part B of the complaint forcibly evicted the complainants and thousands of other persons resident and working in the areas. In the process, bulldozers and other demolition equipment owned or controlled by employees, workmen or agents of EAGM/Afrika Mashariki demolished the properties, including housing, belonging to the complainants.

c. LEGAL FOUNDATIONS

Although the Constitution and the African Charter do not explicitly provide for the right to housing, this right is widely recognized in international law. Article 25(1) of the Universal Declaration provides for instance, that every one has a right to “a standard of living adequate for the health and well-being of himself and of his family, including … housing….” Similarly, Article 11(1) of the ICESCR recognizes, in almost identical terms, the right to an adequate standard of living … including adequate food, clothing and housing….” No wonder Point 13 of the Global Strategy of Shelter to the Year 2000, adopted by the United Nations General Assembly resolution 43/81 of December 20, 1988, states that “the right to housing is universally recognized by the community of nations…. All citizens of all states, poor as they may be, have a right to expect their Governments … to accept a fundamental obligation to protect and improve houses and neighborhoods rather than damage or destroy them.” In all other cases where this right is not expressly provided for, it has been presumed to be inherent in the provisions related to the right to life, property, enjoyment of the highest attainable standards of mental and physical well-being as well as to the protections afforded the family.

d. LEGAL CONCLUSIONS

At the very minimum, the right to housing obliged the parties referred to in Part B of the complaint not to destroy the housing of the complainants. At the very minimum also, the parties referred to in Part B were obliged not to violate the complainants’ right of protection against forced evictions. In addition, as public officials, the parties referred to in paragraphs 2, 3, 4, 5, 6, 8, 9 and 10 of Part B of the complaint had an obligation to prevent the violation of the complainants’ rights to housing by EAGM/Afrika Mashariki. The conduct of the parties referred to in Part B of the complaint clearly shows that the rights of the complainants to housing and to protection against forced evictions were abrogated.

VIII. VIOLATION OF THE RIGHT TO PROTECTION AGAINST FORCED EVICTIONS

a. SUMMARY OF VIOLATION

Forced evictions of the complainants by the parties referred to in Part B of the complaint violated international human rights norms that prohibit or severely restrict the practice of forced evictions as enunciated in the ILO Convention No. 107, United Nations Human Rights Commission Resolution 1993/77 and various resolutions of the Committee on Economic, Social and Cultural Rights.

b. LEGAL FOUNDATIONS

The right to adequate housing discussed above is closely related to the right to protection against forced evictions, which is now well settled in international human rights law. Forced evictions have long been recognized as a particularly abhorrent practice. The term “forced evictions” is defined by the Committee on Economic, Social and Cultural Rights (“Committee on ECOSOC”) as “the permanent removal against their will of individuals, families and/or communities from the homes and/or which they occupy, without the provision of, and access to, appropriate forms of legal or other protection.” In Social and Economic Rights Action Centre and Center for Economic and Social Rights vrs. Nigeria, a matter involving the Federal Government of Nigeria and its treatment of the Ogoni people of the Niger Delta, the African Commission on Human and Peoples’ Rights (“the African Commission”) observed that whenever and wherever they occur, forced evictions are extremely traumatic: “They cause physical, psychological and emotional distress; they entail losses of means of economic sustenance and increase impoverishment. They can also cause physical injury and in some cases sporadic deaths…. Evictions break up families and increase existing levels of homelessness.”

According to UN statistics, in excess of one billion persons throughout the world are homeless or inadequately housed, and that this number is increasing. It is for this reason that the international community has long sought to severely restrict or outlaw forced evictions. As long ago as 1950, the International Labour Organization (“ILO”) had promulgated the first international set of regulations intended to secure the interests of indigenous or tribal peoples. Its 1950 Convention No. 107 Concerning the Protection and Integration of Indigenous and Other Tribal and Semi-tribal Populations in Independent Countries, accepted forced evictions but only for “reasons relating to national security, or in the interest national economic development or of the protection of the health of the said populations.”

However, even under these conditions, the ILO Convention mandated compensation for the affected populations. Thus governments could resettle their native or indigenous populations but “… they shall be provided with land at least equal to that of the lands previously occupied by them … (and) persons thus removed shall be fully compensated for any resulting loss or injury.” And in the case cited above, the African Commission quoted with approval the General Comment No. 4 (1991) of the Committee on Economic, Social and Cultural Rights on the Right to Adequate Housing that had stated that ‘“all persons should possess a degree of security of tenure which guarantees legal protection against forced eviction, harassment and other threats.”’ For ease of reference by the Honorable Commissioners, a copy of the said landmark decision of the African Commission is attached hereto and marked “P” to form part of the complaint.

In March 1993, the United Nations Commission for Human Rights (“the UN Commission”) unanimously adopted a resolution prohibiting forced evictions. The UN Commission’s Resolution 1993/77 denounced the practice as “a gross violation of human rights”; and urged governments “to undertake immediate measures, at all levels, aimed at eliminating the practice of forced evictions.” The Resolution also urged governments to confer legal security of tenure to all persons currently threatened with forced eviction and “to adopt all necessary measures giving full protection against forced evictions, based upon effective participation, consultation and negotiation with affected persons or groups.” In addition, Resolution 1993/77 recommended that all governments “provide immediate restitution, compensation and/or appropriate and sufficient alternative accommodation or land, consistent with their wishes or needs, to persons and communities which have been forcibly evicted, following mutually satisfactory negotiations with the affected persons or groups.” For ease of reference of the Honorable Commissioners, a copy of the said UN Commission Resolution 1993/77 is attached hereto and marked “Q” to form part of the complaint.

c. LEGAL CONCLUSIONS

At the very minimum, the parties referred to in Part B of the complaint were obliged not to forcibly evict the complainants. On the contrary, they were duty-bound to take “immediate measures” to eliminate this abhorrent practice by securing the tenure rights of the complainants over their lands and natural resources. However, having decided to carry out this “gross violation of human rights”, they were obliged to “provide immediate restitution, compensation and … provide appropriate and sufficient alternative accommodation or land.” The conduct of the parties referred to in Part B of the complaint flew in the face of these internationally accepted norms and standards and constitutes a gross violation of the complainants’ fundamental right to be protected against forced evictions.

IX. VIOLATION OF THE DUTY TO RESPECT, PROTECT, PROMOTE AND FULFILL HUMAN RIGHTS

In Social and Economic Rights Action Centre and Center for Economic and Social Rights vrs. Nigeria, the African Commission enunciated broad principles regarding duties that are generally expected of states and public officials under the African Charter and vis-a-vis human rights themselves. The African Commission stated and we quote in extenso:
“44. Internationally accepted ideas of the various obligations engendered by human rights indicate that all rights … generate at least four levels of duties for a State that undertakes to adhere to a rights regime, namely the duty to respect, protect, promote, and fulfill these rights. These obligations universally apply to all rights and entail a combination of negative and positive duties….

“45. At a primary level, the obligation to respect entails that the State should refrain from interfering in the enjoyment of all fundamental rights; it should respect right-holders, their freedoms, autonomy, resources, and liberty of their action. With respect to socio-economic rights, this means that the State is obliged to respect the free use of resources owned or at the disposal of the individual alone or in any form of association with others, including the household or the family, for the purpose of rights-related needs. And with regard to a collective group, the resources belonging to it should be respected, as it has to use the same resources to satisfy its needs.

“46. At a secondary level, the State is obliged to protect right-holders against other subjects by legislation and provision of effective remedies. This obligation requires the State to take measures to protect beneficiaries of the protected rights against political, economic and social interferences. Protection generally entails the creation and maintenance of an atmosphere or framework by an effective interplay of laws and regulations so that individuals will be able to freely realize their rights and freedoms. This is very much intertwined with the tertiary obligation of the State to promote the enjoyment of human rights. The State should make sure that individuals are able to exercise their rights and freedoms.…

“47. “The last layer of obligation requires the State to fulfill the rights and freedoms it freely undertook under the various human rights regimes. It is more of a positive expectation on the part of the State to move its machinery towards the actual realisation of the rights….

“48. “Thus States are generally burdened with the above set of duties when they commit themselves under the human rights instruments….” (Original emphasis)

The complainants respectfully urge the Honorable Commissioners to adopt the above principles with regard to this complaint and to hold that the parties referred to in Part B of the complaint are in violation of the duty to uphold the Constitution and the laws of the land.

X. VIOLATION OF THE DUTY TO OBEY AND RESPECT THE CONSTITUTION AND THE LAWS OF THE LAND

a. SUMMARY OF VIOLATION

As public officers and/or individual persons, the parties referred to in Part B of the complaint were obliged to obey the Constitution and the laws of Tanzania in terms of Article 26 of the Constitution. They had a further duty to their society, the Tanzanian state and the international community to ensure that fundamental human rights and legality are preserved with regard to the complainants (Arts. 27(1) and 29(2) of the African Charter).

b. FACTS

The facts adduced in the preceding paragraphs of this complaint show clearly that the parties referred to in Part B of the complaint were in dereliction of their duties in constitutional and international law to preserve the Constitution and legality.

c. LEGAL FOUNDATIONS

The Bill of Rights as contained in the Constitution does not only guarantee fundamental rights and freedoms but also imposes duties and obligations upon individuals, public officials and public or private bodies. The most pre-eminent of the constitutional duties and obligations is the duty to obey and respect the Constitution and the laws of the United Republic in terms of Article 26(1) of the Constitution. In this regard, Article 26(2) enjoins “every person to take legal measures … to ensure the preservation of the Constitution and the laws of the land.” The African Charter also recognizes the duty of individuals to society, the State and international community when it states in Article 27(1) that every individual shall have duties towards … society, the State … and the international community.”

It is the complainants’ submission that these provisions have to be read as duties to uphold and respect the laws and fundamental rights and freedoms and international law enacted by lawful authority and the international community. As the African Commission stated in Social and Economic Rights Action Centre and Center for Economic and Social Rights vrs. Nigeria: “Governments have a duty to protect their citizens not only through appropriate legislation and effective enforcement but also by protecting them from the damaging acts that may be perpetrated by private parties.” Quoting with approval the decision of the Inter-American Court of Human Rights in Velasquez Rodriguez vrs. Honduras, the African Commission argued that “when a State allows private persons or groups to act freely and with impunity to the detriment of the rights recognized, it would be in clear violation of its obligations to protect human rights of its citizens.”

d. LEGAL CONCLUSIONS

At the very least, the parties referred to in paragraphs 3, 4, 5, 6 and 7 of Part B of the Complaint were duty-bound to respect and protect the legal and constitutional rights and freedoms of the complainants as contained in the 1979 Act, the 1998 Act and the Constitution, as well as in international law. The said public officials had a duty to protect the complainants’ rights by upholding and respect the express terms of the 1979 Act, the 1998 Act, the Constitution and international law. They had a further duty to protect the complainants from the damaging acts perpetrated by private parties such as EAGM/Afrika Mashariki. It is LEAT’s and the complainants’ submission, which we respectfully urge the Honorable Commissioners to support, that the parties referred to in Part B of the complaint utterly failed to discharge these duties.

XI. VIOLATION OF THE DUTY TO PROTECT THE PUBLIC PROPERTY AND NATURAL RESOURCES OF THE UNITED REPUBLIC

a. SUMMARY OF VIOLATION

The mining operations carried out at Nyabigena and Nyabirama by EAGM/Afrika Mashariki do not contribute meaningfully or at all to the local and national economy of Tanzania. Whereas EAGM/Afrika Mashariki may have repatriated, and continue to repatriate, millions of dollars outside the country in the form of profits or dividends from exports of the gold mined at Nyabigena and Nyabirama, they have contributed only minimally, if at all, to the national of Tanzania and the local economy of the two areas and Tarime District by way of taxes, employment creation and social services. Thus by their actions or omissions, the parties referred to in Part B hereinabove have undermined the national and local poverty alleviation goals. This amounts to the plunder and pillage of the natural resources and public property of the people of the United Republic of Tanzania and violates the duty to protect the natural resources and public property of the United Republic and prohibits embezzlement or mismanagement of public property. By permitting the mining operations carried out by EAGM/Afrika Mashariki, the parties referred to in paragraphs 2, 3, 4, 5, 6, 8, 9 and 10 of Part B of the complaint are thus in violation of the duty imposed by Article 27 of the Constitution; Article 21 of the African Charter; and Articles 1(1) and 1(2) of the ICESCR; Articles 1(1) and 1(2) of the ICCPR.

b. FACTS

By all accounts the mining industry in Tanzania has been growing tremendously since the early 1990s when the government of then President Ali Hassan Mwinyi started to adopt measures that encouraged small-scale miners such as the complainants to mine and sell precious minerals to the government through the Bank of Tanzania and the government-owned commercial banks. Since about 1995 when the present administration started to adopt aggressive measures to attract foreign investors in the mining sector, the growth of the industry has come about as a result of an unrelenting assault on the rights and interests of citizen small-scale miners and the handing over of the nation’s mineral resources to foreign multinational mining companies. In order to better understand the complainants’ contention in this part, it is necessary to examine the two periods that were characterized by the growth of the mining industry and to analyze key features and benefits in each.

i. The Period 1990-1995

Although artisanal or small-scale mining has been a common feature of the Tanzanian mining industry ever since the earliest days of colonial rule, it was during the brief period of 1990 – 1995 that it reached its highest peak in terms of its contribution to the national economy and to local and national poverty alleviation efforts. As we have seen, the government had been setting aside huge areas for small-scale miners under section 69 of the 1979 Act. The government did not, however, create conducive marketing mechanisms for the artisanal miners to market their minerals with the result that smuggling through neighboring countries became rampant.

However, this changed in from about April 1990 when President Mwinyi declared that small-scale miners were free to operate everywhere in the country. The government also directed the Bank of Tanzania and the government-owned commercial banks to buy the precious minerals from the small-scale miners on market prices and with no questions asked. The mining boom that followed has been well documented. For example, statistics from the Ministry for the year 1993 show a dramatic rise in official exports and foreign exchange earnings from mineral exports. For instance, these statistics show in 1989 gold exports had accounted for slightly over $1 million or about six per cent of the total mineral exports. By 1991, however, gold exports had risen to over $29 million or nearly 66 per cent of the total mineral exports. It would account for over $40 million or over three-quarters of the total mineral exports in 1992. Independent studies have given even higher figures of export earnings, with one British publication estimating Tanzania’s foreign exchange earnings from gold exports at $44.3 million in 1992 and $55 million in 1993. (See Regional Surveys of the World: Africa South of Sahara, 27th Edn., Taylor & Francis Group, Europa Publications, London, 1998, pp. 1041-2). There is no doubt, therefore, that artisanal or small-scale mining made considerable contribution to the national economy and to government revenue through foreign exchange earnings.

As regards its contribution to local economies, livelihoods and poverty alleviation, the artisanal mining boom in the early 1990s made enormous contributions to rural job creation and incomes. Various studies have, for example, estimated that at its height in the mid-1990s, artisanal mining directly employed between 500,000 and 900,000. The complainants shall refer the Honorable Commissioners to studies carried out by Professor Chachage Seithy Chachage, a leading sociologist from the University of Dar es Salaam titled “Mining and Environmental Issues Under SAPs in Tanzania: Examples From Three Case Studies”, in M.S.D. Bagachwa and F. Limbu (eds.), Policy Reform and the Environment in Tanzania, Dar es Salaam, Dar es Salaam University Press, 1995; and “The Meek shall Inherit the Earth But Not the Mining Rights: The Mining Industry and Accumulation in Tanzania”, in P. Gibbon (Ed.), Liberalised Development in Tanzania, SIAS, Uppsala. 1995. Copies of Professor Chachage’s studies are attached hereto and collectively marked “R” to form part of the complaint.

Other studies were carried out by Tan Discovery Minerals Consulting of Dar es Salaam which concluded the artisanal small-scale mining sector employed anywhere between 500,000 and one million people countrywide. See Preliminary Report on Baseline Survey and Preparation of Development Strategy for Small Scale and Artisanal Mining Program, Tan Discovery Minerals Consulting/World Bank, Dar es Salaam, 1996, which is attached hereto and marked “S” to form part of the complaint. The Tan Discovery findings regarding the number of people employed in small-scale mining were adopted by minister Yona in a 2002 speech to the National Assembly. See Speech by Minister for Energy and Minerals, Honorable Daniel N. Yona (MP), Presenting Budget Estimates by the Ministry of Energy and Minerals for the Year 2002/2003, United Republic of Tanzania, Government Printer, Dar es Salaam, p. 3, which is attached hereto and marked “T” to form part of the complaint.

According to yet another study carried out jointly by researchers from the Economic and Social Research Foundation (ESRF) of Dar es Salaam, International Business Initiatives of Roslyn, Virginia, USA, John F. Kennedy School of Government of Harvard University in USA, Tan Discovery Mineral Consulting and the Ministry of Energy and Minerals, the sector, according to one such study, contributed enormously to rural job creation, accounting for about 46% of the total middle income jobs in 1995. (Phillips et al., 2001:7) In addition, secondary economic activities associated with it generated an estimated three jobs for every single one directly employed in mining.

The basic income in mining towns, according to this study, was about six times what rural men could earn doing farm labour: “Moreover, the money coming out of artisanal mining appears to be staying local, greatly enhancing cash flow in isolated rural areas.” And while “splurging” after a rich find is commonplace, “not all of the income is going into the proverbial ‘wine, women and song.’ Miners are building capital to move up a career ladder into brokering and dealing. Some are investing in more stable businesses such as shops, restaurants and guesthouses.” The study concluded: “No other sector or job-creation program has injected (more) dispersed incomes into rural areas, stimulated (greater) cash flow and reduced rural poverty and on such a (large) scale.” See Tanzania’s Precious Minerals Boom: Issues in Mining and Marketing, Phillips, L.C., H. Semboja, GP Shukla, R. Sezinga, B. Mchwampaka and W. Mutagwaba, African Economic Policy Discussion Paper No. 68, March 2001, Roslyn, Virginia, which is attached hereto and marked “U” to form part of the complaint.

The enormous contribution of small-scale mining to the national economy and in national poverty alleviation efforts during the period in question was not only recognized in academic treatises but also in political discourses of the ruling Chama cha Mapinduzi party itself. Thus we read in the “Programu ya Chama cha Mapinduzi: Mwelekeo wa Sera Katika Miaka ya Tisini”, that was published by the CCM National Executive Committee in December 1992 that “small-scale miners shall be encouraged and supported with proper tools and markets for their products. ... Furthermore, steps that have already been taken to enable the small-scale miners to sell gold and diamonds to the central bank shall be maintained for their benefits to the nation have become much clearer.” See Chama cha Mapinduzi Program: Policy Direction in the 1990s, National executive Committee, Dodoma, December 1992, at paragraph 61, that is attached hereto and marked “V” to form part of the complaint. CCM would acknowledge this fact again six years later in 1998 when it concluded, in a critical self-assessment of its first twenty years in power, that the growth of the mining sector in the early 1990s “came about as a result of the Government’s … decision, through the Bank of Tanzania and its agents – the National Bank of Commerce and the Cooperative (and Rural Development) Bank, to start buying precious minerals from small-scale miners in April 1990.” See Chama cha Mapinduzi: Tathmini ya Miaka Ishirini ya CCM (1977 – 1997), i.e. Chama cha Mapinduzi: An Assessment of Twenty Years of CCM (1977 – 1997), National Executive Committee, Dodoma, February 1998, at paragraph 102, that is attached hereto and marked “W” to form part of the complaint.

ii. The Period 1995 to Present

During the second half of the decade of the 1990s, the government of President Benjamin W. Mkapa started aggressive policies to woo foreign investors in the mining sector. The government also started to take actions which led directly to the violations of fundamental rights, freedoms and duties and to the abuses of power and malgovernance that are the subject of this complaint with regard to the Nyabigena and Nyabirama areas. Hundreds of prospecting - and several mining - licenses were issued to foreign mining companies by former ministers Kikwete, Shija and Kigoda. According to former minister Kigoda, in two years alone (1997 and 1998), over 750 prospecting licenses and 24 mining licenses were issued to foreign mining companies in different areas of the nation. See Speech by Minister for Energy and Minerals, Honorable Abdallah Omari Kigoda (MP), Presenting Budget Estimates for the Ministry of Energy and Minerals for the Fiscal Year 1999/2000 to the National Assembly, United Republic of Tanzania, Government Printer, Dar es Salaam, 1999, at pp. 16 – 23 that is attached hereto and marked “X” to form part of the complaint. Almost all these licenses were issued in respect of areas that had already been designated and set aside for small-scale miners as we saw in Ground I of this complaint and were thus illegal and null and void.

The government also took legislative measures that have enabled the foreign mining monopolies to benefit enormously from the country’s mineral wealth. In 1997, the government enacted the Financial Laws (Miscellaneous Amendments) Act, 1997, Act No. 27 of 1997 (“the Financial Laws Act”) to amend certain financial laws with specific regard to the mining industry. Under the Financial Laws Act, the Income Tax Act, 1973, the Customs Tariff Act, 1976 and Sales Tax Act, 1976 were all amended to waive or remove liability of foreign investors in the mining sector from payment of income tax; customs duties and sales tax on income or profits or imports connected with their mining operations. Even the Immigration Act, 1995 was amended to allow foreign investors in the mining sector determine themselves the number of foreign workers they can employ in their mining operations!

The reforms of the financial laws to make them more attractive for the foreign mining investors went hand in hand with the creation of what the preamble to the Tanzania Investment Act, 1997, Act No. 26 of 1997 (“the Investment Act”) describes as “more favourable conditions for investors.” The “more favourable conditions” relate to guarantees of protection against nationalization or expropriation by the government (section 22); unrestricted repatriation of profits, capital and all other proceeds connected with the investment from Tanzania (s. 21); as well as rights to employ foreign workers (s. 24). Curiously, although the Investment Act does not apply to foreign investors in the mining sector in terms of section 2(1)(a), “the provisions of Section 21 which relates to guarantees of transfer of profits and dividends and Section 22 which relates to the guarantees against expropriation, shall apply to any business enterprise which holds a mineral right granted under the Mining Act, 1979….”! (See section 2(3).

The 1998 Act finished the legal architecture under which Tanzania’s mineral wealth has been handed over to foreign mining monopolies. Under this Act, holders of Mineral Rights are entitled to exclusive right of ownership of the mining operations and the minerals recovered as well as complete power to dispose of the said minerals recovered. (See sections 43 and 49(1). The 1998 Act also set the amount of royalty on the net back value of minerals that the government receives from the foreign investors at 5 percent in the case of diamonds and 3 percent in the case of other minerals. (See section 86). And in terms of section 87, the Minister is obliged to defer the payment of even this meager amount upon application by the investor that “the cash operating margin” of his operations has fallen below zero!

That the legal and fiscal framework discussed above has been extraordinarily generous to foreign investors has been widely acknowledged in Tanzania and, particularly, abroad in the countries of origin of the foreign investors. For example, a recent survey of mining regulation in Africa that was published by the British-based industry magazine Mining Journal had this to say with specific regard to Tanzania:

“A new mining code was introduced in Tanzania during 1998 following a five-year World Bank-financed sectoral reform project…. Tanzania has taken steps to create a policy environment that is highly attractive to foreign investors. It allows 100% foreign ownership, provides guarantees against nationalization and expropriation, and offers unrestricted repatriation of profits and capital. As with Mali and Guinea, the revised mining code offers a low royalty rate of 3%, as well as a variety of incentives such as waived import duties and tax exemptions. Whereas the previous 1979 Mining Act required applicants for mining licences to present a plan for local procurement of goods and services, such a stipulation is entirely absent from Tanzania’s 1998 Mining Act.”

It is this legal and fiscal architecture that has created the conditions for the plunder and pillage of the country’s mineral wealth and natural resources for the benefit of foreign monopolies such as EAGM/Afrika Mashariki. Whereas, for instance, mineral exports have - according to Deputy Minister for Energy and Minerals, Honorable Dr. Ibrahim Msabaha’s recent speech to the National Assembly – earned US$ 766 million during the year 2001/2002, its contribution to the Gross Domestic Product (GDP) was a mere 2.8 percent. Its contribution to government revenue by way of taxes and royalties amounted to a meager US$ 36 million that came from six large-scale mines inclusive of the Mine. See the following articles: “Minerals contribute 2.8 pc of GDP”, by a Staff Reporter, The African, Saturday, July 5, 2003; H. Mghenyi, “Contribution of mining is encouraging, says Yona”, Business Times, Friday, July 4, 2003; C. Kizigha, “Miners spend 400bn/- on local supplies”, The Daily News, Thursday, July 3, 2003; and C. Muganyizi, “Mineral Exports Earn Tanzania $400m”, The East African, February 24 – March 2, 2003. Copies of the said newspaper articles are attached hereto and collectively marked “Y” to form part of the complaint.

Even the official government statistics themselves admit to the fact that the nation is receiving a raw deal from the mining investors. For example, according to statistics given by minister Yona during his 2002/2003 budget speech, whereas mineral exports earned US$312 million during the year 2001, the contribution of the sector to the national economy (GDP) had grown by a mere 1 percent in five years reaching to 2.5 percent in 2001 from 1.5 percent in 1996! (See Speech by Minister for Energy and Minerals, Honorable Daniel N. Yona (MP), op. cit., pp. 19, 21 and 38.) Likewise, the Poverty and Human Development Report for the year 2002 published by the government shows that mineral production has increased dramatically in the past few years. “Recovery of diamonds increased from 25,500 carats in 1994 to 354,400 carats in 2000, nearly a 15-fold increase. Similarly, gold had a dramatic increase of over 400 percent … (between) 1994 (and) … 2000.”

The quantity of gemstones, the Poverty and Human Development Report, also increased by more than 200 percent during the same period; while minerals accounted for some 39 percent of total exports and 55 percent of non-traditional exports in 2001. Furthermore, the number of prospecting and mining licenses increased from 235 in 1996 to 389 in 1998, an increase of over 65 percent. Notwithstanding these impressive figures, the Poverty and Human Development Report provides a very gloomy assessment of the contribution of the sector to the national economy: “Despite this growth”, says the Report, “the share of mining in GDP is still small at 2 percent…. Economic linkages between mining and the rest of the economy, including through the government budget have been limited…. The tax/royalty incentives … have so far resulted in limited tax revenues, though clearly, increased export earnings have been generated. Some observers believe that the new large-scale mining concessions leave very little value added in the country…. Secondly, direct employment effects have been constrained by the inadequacies of local skill capacity.”

In a footnote to this analysis, the Report finds fault with the fiscal arrangement in the mining sector: “Foreign mining companies in Tanzania are given up to 5-year tax holiday at the beginning of production, pay to the Tanzanian government a royalty fee of only 3 percent of the value of their mineral output, and thereafter are free to take out of the country 100 percent of their profits. Most of their mining equipment is also not taxed.” (See The Research and Analysis Working Group, Poverty and Human Development Report 2002, United Republic of Tanzania, Dar es Salaam, Mkuki na Nyota Publishers, 2002, at pp. 76, 77 and 87, which is attached hereto and marked “Z” to form part of the complaint.)

Of more immediate relevancy to this complaint, the complainants would like to respectfully draw the attention of the Honorable Commissioners to information contained in former minister Kigoda’s budget speech in 1999 where he stated that the Afrika Mashariki Mine would produce about 140,000 ounces of gold (about 4.3 tons) annually, valued at US$ 40 million. (See Speech by Minister for Energy and Minerals, Honorable Abdallah Omari Kigoda (MP), op. cit. p. 18). For his part, Minister Yona told the National Assembly during his 2002/2003 budget speech that the Afrika Mashariki Mine would produce some 200,000 ounces of gold per annum. At the current gold prices in world markets of about US$ 345 per ounce, EAGM/Afrika Mashariki expect to rake in about US$ 69 million per year. Clause 8.1 of the mining license ML 17/96 signed by former minister Shija states that EAGM/Afrika Mashariki shall pay to the government a royalty equal to 3% of the gross value of the refined gold mined at Nyabigena. According to clause 10.1 of that license, the government will also receive US$ 1500 per square kilometer as the annual rental charge. A quick calculation of the amount payable to the government on the basis of these provisions reveals that the government would have “benefited” by getting the grand sum US$ 2,070,630 (two million seventy thousand six hundred and thirty only) per year! The amount received by the government may indeed be much lower than that if deductions are made on construction and operating costs as is required under the fiscal regime created under the Financial Laws Act.

The other way of looking at how our mineral wealth is being plundered for the benefit of foreign mining monopolies is by looking at how much money Placer Dome paid when it recently acquired control of EAGM/Afrika Mashariki and the Afrika Mashariki Mine from its Australian owners. According to the Majira article and the News Release cited above, Placer Dome paid EAGM/Afrika Mashariki shareholders some US$252 million to acquire EAGM/Afrika Mashariki and the Afrika Mashariki Mine in a deal struck on July 9, 2003. By comparison, EAGM/Afrika Mashariki paid virtually nothing to the government of Tanzania and the thousands of residents of the area including the complainants when they illegally acquired the Nyabigena and Nyabirama concessions; not to mention the company’s complicity in widespread abuses of human rights and illegal acts the subject of this complaint.

In addition, the Afrika Mashariki Mine - according to information contained in Minister Yona’s 2002/2003 budget speech - employs only about 663 workers, an unknown number of whom are not even citizens of Tanzania. See Speech by Minister for Energy and Minerals, Honorable Daniel N. Yona (MP), op. cit. p. 3). Yet this Mine was, according to press reports of August 2001, responsible for the forced evictions of 10,000 artisanal miners in August 2001. To destroy potentially thousands of jobs and livelihoods in order to create a handful of other jobs does not appear to LEAT and the complainants like a very intelligent or responsible strategy to alleviate poverty that is the government’s stated national goal.

The fall in employment at the Nyabigena and Nyabirama areas seems to be only a part of a general pattern of destruction of the millions of jobs in artisanal mining and related economic activities that has been the hallmark of the second half of the 1990s. Much of this destruction has largely been attributed to the forced displacement of small-scale miners by the large-scale mining operations undertaken by foreign multinational investors such as EAGM/Afrika Mashariki and Placer Dome. For instance, in 1996, according to company and police reports, an estimated 200,000 to 400,000 people were forcibly evicted from the Bulyanhulu area in Kahama District of Shinyanga Region to make way for Kahama Mining Corporation Ltd., a Canadian owned company, to build the Bulyanhulu Gold Mine. According to company reports, the mine now directly employs about 900 workers. And, according to numerous press reports, since 1998 many more thousands of artisanals have been forced out or are threatened with removal in mining areas ranging from Arusha in the north-east to Nzega, Geita and Bukombe Districts in central and western Tanzania. These areas have instead been allocated to mining companies from South Africa, Australia, Great Britain and Canada.

c. LEGAL FOUNDATIONS

That the parties referred to in paragraphs 3, 4, 5, 6, 7, 8, 9 and 10 of Part B of the complaint had a duty to ensure that the mineral wealth of the United Republic is not surrendered to foreign monopolies is well founded in both the Constitution and in international law. Article 27(1) of the former states that every person has a duty to protect the natural wealth of the United Republic, public property and all property that is owned jointly or collectively by the people, and to respect property owned by any other person. Article 27(2) clarifies this duty as being to “fight all forms of mismanagement and embezzlement, and to manage the national economy assiduously as a people who are in control of their nation’s destiny.”

The position in international law is even clearer. Under Article 21(1) of the African Charter, “all peoples are free to dispose of their wealth and natural resources. This right shall be exercised in the exclusive interest of the people (and) in no case shall a people be deprived of it.” Sub-article 2 provides for the right of recovery and compensation in case this right is abrogated: “In case of spoliation the dispossessed people shall have the right to the lawful recovery of its property as well as to an adequate compensation.” While Sub-article 3 requires that the right to a free disposal of wealth and natural resources be consistent with the obligation to promote international economic cooperation based on mutual respect, equitable exchange and the principles of international law; Sub-article 4 mandates that the right be exercised “with a view to strengthening African unity and solidarity.”

Perhaps the most important and relevant provision of the African Charter regarding the issue at hand is Article 21(5) that obligates the States Parties to the Charter to prohibit exploitation of the continent’s wealth and natural resources by foreign entities such as EAGM/Afrika Mashariki. Thus States Parties “shall undertake to eliminate all forms of foreign economic exploitation particularly that practiced by international monopolies so as to enable their peoples to fully benefit from the advantages derived from their natural resources.” In Social and Economic Rights Action Centre and Center for Social and Economic Rights vrs. Nigeria, the African Commission traced the origin of this provision to colonialism, “during which the human and material resources of Africa were largely exploited for the benefit of outside powers, creating a tragedy for Africans themselves, depriving them of their birthright and alienating them from the land.” And as the Commission found with regard to oil exploitation in Nigeria’s Ogoniland, “the aftermath of colonial exploitation has left Africa’s precious resources and people still vulnerable to foreign misappropriation.” That is why the drafters of the African Charter “obviously wanted to remind African governments of the continent’s painful legacy and to restore cooperative economic development to its place at the heart of African Society.”

In a language similar to the African Charter’s, both the ICESCR and ICCPR also recognize the right of peoples to their natural resources, locating it at the heart of the right to self-determination. Thus, by virtue of that right, peoples “freely determine their political status and freely pursue their economic, social and cultural development”; and may, for their own ends, “freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic cooperation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its means of subsistence.” (See Articles 1(1) and 1(2) of the ICESCR and Articles 1(1) and 1(2) of the ICCPR).

d. LEGAL CONCLUSIONS

By permitting EAGM/Afrika Mashariki and Placer Dome to carry out mining operations in the manner, under the terms and with the results described above, the parties referred to in paragraphs 3, 4, 5, 6, 7, 8, 9 and 10 of Part B of the complaint are in violation of the constitutional duty to protect the natural wealth of the United Republic, public property and all property that is owned jointly or collectively by the people of Tanzania. By their actions or omissions, these parties are in dereliction of their constitutional duty to “fight all forms of mismanagement and embezzlement”, and have certainly failed “to manage the national economy assiduously as a people who are in control of their nation’s destiny.”

By allowing EAGM/Afrika Mashariki and Placer Dome – all of them foreign multinational monopolies – to take complete control of, and to exploit for own benefit, the mineral wealth of Nyabigena and Nyabirama areas and of Tanzania as a whole, the parties referred to in paragraphs 3, 4, 5, 6, 7, 8, 9 and 10 of Part B of the complaint are in clear violation of Tanzania’s treaty obligations under international law to “eliminate all forms of foreign economic exploitation particularly that practiced by international monopolies.” Their complicity in actions and/or omissions complained of in this complaint has prevented the complainants and the Tanzanian peoples from “fully benefiting from the advantages derived from their natural resources.” In view of this dereliction of constitutional duties and of international law obligations, the rights of the peoples of Tanzania and the complainants in particular have been “spoliated.” The complainants, as a dispossessed people, have the right “to the lawful recovery of its property as well as to an adequate compensation.”

XII. VIOLATION OF ENVIRONMENTAL MANAGEMENT REQUIREMENTS AND THE RIGHT TO A HEALTHY ENVIRONMENT

a. SUMMARY OF VIOLATION

EAGM/Afrika Mashariki were obliged to present their application for a mining license accompanied by a statement of likely environmental impacts arising from their proposed mining operations; and an environmental management plan intended to prevent or mitigate potential environmental harms caused by the said mining operations. No such environmental impacts statement or environmental management plan was ever presented or if it was ever presented did not comply with the requirements for carrying out of environmental impact assessments and preparation of environmental management plans contrary to sections 37(2)(v) and 39(3)(a)(i) of the 1979 Act; and sections 38(4)(d), 39(1)(d), 41(2)(b), 45, 47(2)(h), 48(d)(e), 64 and paragraph 5(1) of Schedule 4 of the 1998 Act.

The failure to prepare adequate environmental impacts statement and environmental management plan are also inconsistent with the right to live in a healthy environment as recognized by Article 14 of the Constitution; Article 3 of the Universal Declaration; Article 6(1) of the ICCPR; Article 12 of the ICESCR; Article 2(1) of the European Convention; Articles 4, 16 and 24 of the African Charter; Articles 12 of the ICESCR; Article 4(1) of the American Convention; and Article 11 of the Additional Protocol to the American Convention.

b. FACTS

On August 29, 2000, EAGM/Afrika Mashariki submitted an environmental management plan (“EMP”) for the Afrika Mashariki Mine. Prepared by NSR Environmental Consultants Pty Ltd., a consulting firm based in Victoria, Australia, the EMP was intended to “define the key environmental management issues” raised by the project; and to demonstrate how Afrika Mashariki will plan and operate the project “in a practical manner”, in order to minimize adverse environmental impacts. (Afrika Mashariki Gold Mines Ltd., Environmental Management Plan for the North Mara Gold Project, op. cit., vi, 1). The EMP suggests – if only implicitly – that the 1979 Act did not require the preparation of environmental protection or mitigation measures such as environmental impacts assessments (EIAs) and environmental management plans. (op. cit., p. 4). However, we made to believe, even though the 1979 Act did not have these environmental requirements, the EMP was allegedly prepared “to comply, as far as practicable, with the Mining Act 1998.” The EMP, marked “AA”, is rather too bulky to be attached hereto but LEAT and the complainants shall produce it in the course of proceedings as part of their case.

Following a review by the National Environmental Management Council (“NEMC”) and the latter’s recommendations that additional investigations be undertaken, EAGM/Afrika Mashariki submitted a Supplementary Environmental Management Plan (“SEMP”) in August 2002. Prepared by another Australian consulting firm called Earth Systems Environmental Research and Consulting, SEMP makes a bold admission that EAGM/Afrika Mashariki “did not prepare a separate Environmental Impact Statement (EIS), as under the Mining Act (1998), the preparation of an EIS is not required for holders of mining licenses originally granted under the Mining Act (1979).” (See Afrika Mashariki Gold Mines Ltd., Supplementary Environmental Management Plan: North Mara Gold Project (Nyabirama), Earth Systems Environmental Research and Consulting, August 2002, p. 1). The SEMP, marked “BB”, is rather too bulky to be attached hereto but LEAT and the complainants shall produce it in the course of the proceedings to form part of their case.

The claims of compliance with both the 1979 and 1998 laws cannot, however, withstand critical scrutiny as we show below.

c. LEGAL FOUNDATIONS

Mining has long been recognized as the leading polluter of the environment with acid mine drainage, cyanide and heavy metal poisoning through accidental spillage or leaks due to inadequate storage, transportation or disposal methods being a particularly common and chronic feature of large-scale gold mining operations. It is for this reason that Tanzanian mining law has long sought to regulate the activities of large-scale mining operations such as those carried out at the Mine. Thus under section 37(2)(h)(v) of the 1979 Act, an application for the grant of a mining license was required to give or to be accompanied by a … statement of proposals for the prevention or treatment of pollution, the safeguarding of fishing and navigation, … the progressive reclamation and rehabilitation of any land disturbed by mining, and the minimization of the effects of mining on water areas … and adjoining lands….” This statement is known, in the parlance of environmental law, as environmental impact statement and is prepared after an environmental impact assessment has been carried out. Such is the importance attached to environmental considerations under the 1979 Act that section 39(3)(a)(i) prohibited the grant of a mining license to an applicant unless his programme of proposed mining operations took “proper account of environmental and safety factors.”

Under the new 1998 Act the requirements for environmental impact assessments and statements and environmental management plans have been strengthened further. In this regard, mining licenses for large-scale mining operations such as those carried out by the parties referred to in paragraphs 1 and 2 of the complaint that were granted under the 1979 Act are required to pass the muster of another environmental impact assessment and the preparation of a new environmental management plan. Thus although the 1998 Act provided for an almost automatic validation of licenses granted under the 1979 Act (see paragraphs 2, 3 and 4 of Schedule 4 that provides for savings and transitional provisions in respect of the repeal of the 1979 Act), paragraph 5(1) of that Schedule required a holder of a “special mining license”, i.e. of the kind required for large-scale mining operations such as those at the Mine, to “draw up and submit to the Minister for approval an environmental management plan that satisfies the requirements of paragraph (d) of subsection (1) of section 39, paragraph (e) of subsection (1) of section 48 or paragraph (g) of subsection (1) of section 52 and following approval the Minister may require the holder to conduct mining operations under the license in substantial compliance with the plan as approved.”

Section 39(1)(d) of the 1998 obliges the Minister to grant a special mining license to an entitled applicant if “… the applicant’s environmental management plan takes proper account of the environmental impact assessment commissioned in accordance with subsection (5) of section 38 and conforms to the Regulations and to established international standards and practice and meets reasonable standards established by the Government of Tanzania for the management of mining operations.” For its part, section 38(5) requires every applicant for a special mining license to “commission and produce to the Minister an environmental impact assessment on the proposed mining operations from independent consultants of international standing shortlisted by the applicant and approved by the Government of the United Republic.” Section 48(1)(e), on the other hand, prohibited the Minister from granting a mining license where “the applicant’s environmental management plan fails to take proper account of the environmental impact assessment commissioned in accordance therewith or otherwise fails to conform to the Regulations, established by international standards and practice, or reasonable standards established by the Government of Tanzania for the management of mining operations.” Section 52(1)(g) relates to gemstone mining licenses and is irrelevant for the purposes of this complaint.

Environmental rights are also constitutional rights recognized by the Constitution and international law. In ground V hereinabove, we discussed at some length the right to life as broadly understood in constitutional law and jurisprudence as well as in international law. With regard to environmental matters, the right to life has been broadly defined to include the right to a clean and healthy environment. As the late Justice Lugakingira stated with great surprise when faced with an application by the Dar es Salaam City Council to be permitted to continue dumping noxious waste in Tabata area: “I will say at once that I have never heard it anywhere for a public authority, or even an individual, to go to court and confidently seek for permission to pollute the environment and endanger people’s lives regardless of their number…. Article 14 of our Constitution provides that every person has a right to live and to protection of his life by the society. It is therefore a contradiction in terms and a denial of this basic right deliberately to expose anybody’s life to danger or, what is eminently monstrous, to enlist the assistance of the Court in this infringement.” (See Joseph Kessy et. al. vrs. Dar es Salaam City Council, Civil Case No. 299 of 1988, High Court of Tanzania (Dar es Salaam)(unreported). For ease of reference by the Honorable Commissioners, a copy of the said decision of the High Court is attached hereto and marked “CC” to form part of the complaint.

Likewise, the Chief Justice Honorable Justice Barnabas Samatta stated as follows when opening a Judicial Symposium on Environmental Law in Arusha in June 2003:
“My Lords, as most of those present here very well know, the Constitution of this country recognizes the right to life. What are the ingredients of this right? Does the right mean merely the right to animal existence? If that is the correct meaning, then it follows that the right can scarcely be used by courts to protect the environment. If the fundamental right includes the right to a clean and wholesome environment and to a safe and clean air and water, then our courts will be able to play a significant role in the protection and improvement of natural environment, including forests, lakes, rivers and wildlife. Then they would be able to echo the words of Mr. Justice Holmes: ‘A river is more than amenity; it is a treasure.”’
(See Welcoming Address Given by Chief Justice Barnabas A. Samatta at the Opening of the Judicial Symposium (on Environmental Law and Policy), Held at Arusha, 26-27 June, 2003, at p. 6.) The paper presented by the Honorable the Chief Justice is attached hereto and marked “DD” to form part of the complaint.

The right to a clean and healthy environment is also recognized under the African Charter. Under Article 16, the right of every individual to “enjoy the best attainable state of physical and mental health” is guaranteed and States Parties are enjoined to take necessary measures “to protect the health of their people and to ensure that they receive medical attention when they are sick.” Similarly, Article 24 guarantees the right of all peoples to “a general satisfactory environment favourable to their development.” As the African Commission stated in Social and Economic Rights Action Centre and Center for Economic and Social Rights vrs. Nigeria, these rights recognize the importance of a clean and safe environment that is closely linked to economic and social rights in so far as the environment affects the quality of life and safety of the individual.

Thus, stated the African Commission: “The right to a general satisfactory environment … or the right to a healthy environment … imposes clear obligations upon a government. It requires the State to take reasonable and other measures to prevent pollution and ecological degradation, to promote conservation, and to secure an ecologically sustainable development and use of natural resources. Article 12 of (the ICESCR) … requires governments to take necessary steps for the improvement of all aspects of environmental and industrial hygiene. The right to enjoy the best attainable state of physical and mental health … and the right to a general satisfactory environment favourable to development … obligate governments to desist from directly threatening the health and environment of their citizens.”

More importantly, the African Commission held that governments had an obligation to respect these rights by not carrying out, sponsoring, tolerating any practice, policy or legal measures violating the integrity of the individual. Governmental compliance with these rights also meant that governments should also “(order) or (permit) independent monitoring of threatened environments, (require) and (publicize) environmental and social impacts studies prior to any major industrial development, (undertake) appropriate monitoring and (provide) information to those communities exposed to hazardous materials and activities and (provide) meaningful opportunities for individuals to be heard and to participate in the development decisions affecting their communities.”

d. LEGAL CONCLUSIONS

By failing or neglecting to carry out environmental impact assessment and prepare environmental impact statement and environmental management plan as aforesaid, EAGM/Afrika Mashariki are in violation of the law as elaborated hereinabove. By permitting EAGM/Afrika Mashariki to carry out mining operations in the manner complained of, the parties referred to in paragraphs 3, 4, 5 and 6 of the complaint are in violation of the 1979 Act, the 1998 Act, the Constitution and international human rights law as per the analysis hereinabove.

F. JURISDICTION OF THE COMMISSION

In terms of sections 6, 15(1)(b), 15(2), 22(5) and 40 of the 2001 Act; and Article 130(1) of the Constitution, the Commission is possessed of full jurisdiction to receive and investigate this complaint in accordance with the law.

G. RELIEFS REQUESTED

On November 29, 1985 the United Nations General Assembly unanimously adopted the
Declaration of Basic Principles of Justice for the Victims of Crime and Abuse of Power (“the
UN Declaration).) (See General Assembly Resolution 40/34 of November 29, 1985). The UN
Declaration defines “victims” of crime or abuse of power as “persons who, individually or
collectively, have suffered harm, including physical or mental injury, emotional suffering,
economic loss or substantial impairment of their fundamental rights, through acts or omissions
that are in violation of the criminal laws (or, in the case of victims of abuse of power, acts or
omissions that do not yet constitute violations of national criminal laws but of internationally
recognized norms relating to human rights) operative within Member States, including those
laws proscribing criminal abuse of power.” (See paragraphs 1 and 18). The UN Declaration
obliges member states to create mechanisms for access to justice that treat the victims fairly,
provide prompt redress and are expeditious and inexpensive. Tanzania appears to have
adopted this particular provision under the 2001 Act; whose section 20(2) states that in
conducting an inquiry, the Commission shall observe rules of natural justice but shall not be
bound by any legal or technical rules of evidence applicable to proceedings; and “all
proceedings shall be conducted … expeditiously.”

The UN Declaration also obliges offenders or third parties that are responsible for their
behaviour to make fair restitution to victims, their families or dependants. Such restitution can
be in the form of “the return of property or payment for the harm or loss suffered,
reimbursement of expenses incurred as a result of the victimization, the provision of services
and the restoration of rights.” For ease of reference of the Honorable Commissioners, copy of
the UN Declaration is attached hereto and marked “EE” to form part of the complaint.

From what we have presented above, there is no doubt that the complainants fit in almost all
respects such definition of “victims” as given by the UN Declaration. It follows that they are
entitled to the fair treatment, prompt redress, expeditious and inexpensive hearing of their
grievances and fair restitution and compensation as called for in the UN Declaration, in
Tanzanian constitutional and statutory law and in international human rights law as
exhaustively examined hereinabove.

Therefore, LEAT and the complainants respectfully urge the Honorable Commissioners to
investigate this complaint in accordance with the 2001 Act by opening an inquiry, instituting
proceedings by holding public hearings in terms of sections 17, 18 and the whole of Part IV of
the 2001 Act. Having investigated the complaint as aforesaid, the complainants respectfully
urge the Honorable Commissioners to make the following findings of fact and
recommendations:

1. To make a finding of fact that the parties referred to in Part B of the complaint abrogated the complainants’ legal and constitutional rights and freedoms as detailed in Grounds I, II, III, IV, V, VI, VII, VIII and XII of Part E of the complaint.

2. To make a finding of fact that the parties referred to in Part B of the complaint are in violation of the constitutional duties as detailed in Grounds IX and X of Part E the complaint.

3. To make a finding of fact that the parties referred to in paragraphs 3, 4, 5, 6, 7, 8, 9 and 10 of Part B of the complaint are in violation of the constitutional duty detailed in Ground XI of Part E of the complaint.

4. Make a finding of fact that the parties referred to paragraphs 3, 4, 5, 6, 7, 8, 9 and 10 of Part B of the complaint are in violation of the norms of legality and good governance that are at the heart of our country’s constitutional order.

5. To make an order in terms of sections 6(1)(a), 6(1)(i), 6(2), 28(1) and 28(4) of the 2001 Act, requiring the parties referred to in paragraphs 1 and 2 of Part B of the complaint to pay the complainants fair, just and reasonable compensation as required under the 1979 Act, the 1998 Act, the Constitution and in international human rights law and standards as elaborated in Ground III of Part E of the complaint. Such fair and reasonable compensation should take account of the considerable hardships the complainants have been put through since their illegal evictions in 1996 and 2001; as well as any interest that may have accrued on the compensation sum since that time.

6. To make an order in terms of sections 6(1)(a), 6(1)(i), 6(2), 28(1) and 28(4) of the 2001 Act, requiring Minister Yona to suspend or cancel any mineral rights that were granted to EAGM/Afrika Mashariki until such time as the violations of the 1979 Act, 1998 Act, the Constitution and international human rights law and of the fundamental rights and freedoms of the complainants as elaborated in Parts D and E have been stopped and any injury or loss caused as a result of the said violations has been recompensed in accordance with the law.

7. To make an order in terms of sections 6(1)(a), 6(1)(i), 6(2), 28(1) and 28(4) of the 2001 Act, requiring Minister Yona to review afresh the agreement with EAGM/Afrika Mashariki regarding the payment of royalties, taxes and other charges with a view to increasing the amount that EAGM/Afrika Mashariki ought to pay that is more beneficial to the government, the complainants and the people of Tanzania in general.

8. To make an order in terms of sections 6(1)(a), 6(1)(i), 6(1)(k), 6(2), 28(1) and 28(4) of the 2001 Act, requiring Minister Yona to review and to cause to be amended or repealed the Financial Laws Act and the enactment of another law that will ensure that EAGM/Afrika Mashariki and other mining investors pay the requisite taxes that are more beneficial to the government, the complainants and the people of Tanzania in general that they are now precluded from paying.

9. To make an order in terms of sections 6(1)(a), 6(1)(i), 6(1)(k), 6(2), 28(1) and 28(4) of the 2001 Act, requiring Minister Yona to review and to cause to be amended or repealed the provisions under the Investment Act and the 1998 Act that grant complete control of the country’s mineral wealth to foreign monopolies such as EAGM/Afrika Mashariki and that allow such monopolies guarantees from expropriation and profit and capital transfer as elaborated in Ground XI of Part E of the complaint.

10. To recommend to the President of the United Republic to exercise his powers under Article 36 of the Constitution to remove from public office the parties referred to in paragraphs 3, 4, 5, 6, 8, 9 and 10 for their complicity in the abrogation of the law and of the complainants’ fundamental rights and freedoms and the dereliction of their legal and constitutional duties as elaborated in Parts D and E of the complaint.

i. Minister Yona has failed or neglected to discharge his legal duty under section 57 of the 1998 Act to suspend or cancel the illegal special mining license purported to have been granted to the parties referred to in paragraphs 1 and 2 of Part B of the complaint. Minister Yona has also failed or neglected to discharge constitutional duties as elaborated in Grounds X, XI and XII of the of Part E of the complaint.
ii. Former Minister Kigoda failed or neglected to discharge his legal duty under section 57(1)(c) of the 1979 Act to suspend or cancel the illegal license purported to be granted by former minister Shija to EAGM/Afrika Mashariki contrary to the provisions of the 1979 Act as elaborated in Ground I of Part E of the complaint. Former minister Kigoda also re-granted special mining licenses to EAGM/Afrika Mashariki contrary to the provisions of the 1998 Act. These actions set the stage for the 1996 and 2001 forced evictions of the complainants and the violation of their legal and constitutional rights and freedoms as set forth in Part E above. Former minister Kigoda has also failed or neglected to discharge constitutional duties as elaborated in Grounds X, XI and XII of the of Part E of the complaint. Whether former minister Kigoda acted or omitted to act with full knowledge of the law or in ignorance thereof is immaterial to the fact that his actions were inconsistent with the requirements of the high office of the minister responsible for mining.

iii. Former minister Maokola Majogo not only failed or neglected to discharge his legal duty under section 57(1)(c) to suspend or cancel the illegal special mining licenses re-granted by former minister Kigoda to EAGM/Afrika Mashariki, he went out of his way to give his blessings to the illegal evictions of the complainants, thereby violating the complainants’ legal and constitutional rights and freedoms as elaborated in Part E of the complaint. Former minister Maokola Majogo has also failed or neglected to discharge constitutional duties as elaborated in Grounds X, XI and XII of the of Part E of the complaint. Whether former minister Maokola Majogo acted with full knowledge of the law or in ignorance thereof cannot detract from the fact that his actions were inconsistent with the requirements of the high office of the minister responsible for mining.

iv. Former minister Shija also failed or neglected to discharge his legal duties under the 1979 Act. Firstly, he should never granted any Mineral Rights to EAGM/Afrika Mashariki given the requirements of the 1979 Act that prohibited him from granting such Mineral Rights in designated areas. Secondly, he should never have granted a mining license to a company that did not hold a previous prospecting license in view of the prohibitions in the 1979 Act. Thirdly, having granted the said mining licenses in contravention of the express prohibitions of the 1979 Act, section 57(1)(c) of that Act obliged him to suspend or cancel the license he had illegally issued to EAGM/Afrika Mashariki. Former minister Shija has also failed or neglected to discharge constitutional duties as elaborated in Grounds X, XI and XII of the of Part E of the complaint. Whether former minister Shija acted with full knowledge of the law or in ignorance thereof is immaterial to the determination that his actions were inconsistent with the requirements of the high office of the minister responsible for mining.

v. Commissioner Mwakalukwa failed or neglected to discharge his duty under sections 9, 10 and Part VI of the 1979; and sections 16, 17, 18, 19 and Part VIII of the 1998 Act with the result that there are serious continuing violations of the law and constitutional rights and freedoms of the complainants. Commissioner Mwakalukwa has also failed or neglected to discharge constitutional duties as elaborated in Grounds X, XI and XII of the of Part E of the complaint. Whether Commissioner Mwakalukwa acted with full knowledge of the law or in ignorance thereof is immaterial to the determination of the fact that his actions were and are inconsistent with the requirements of the high office of the Commissioner for Minerals.

vi. RC Lugoe and DC Mabiti failed or neglected to discharge their duty to uphold, respect and protect the Constitution and laws of the land. They also participated directly in the forced evictions of the complainants thus abrogating the legal and constitutional rights and freedoms. RC Lugoe and DC Mabiti have also failed or neglected to discharge their constitutional duties as elaborated in Grounds X, XI and XII of the of Part E of the complaint. Whether RC Lugoe and DC Mabiti acted with full knowledge of the law or in ignorance thereof is immaterial to the determination of the fact that their actions were inconsistent with the requirements of the high office of the Regional Commissioner and the District Commissioner respectively.

vii. Land Valuer Magabe failed or neglected to discharge his legal and constitutional duties with the honor, professional judgment and good faith required of him by law. His conduct has contributed to the violation of the fundamental rights of the complainants as exhaustively elaborated in Ground III of Part E of the complaint. Whether he acted with full knowledge of the law or in ignorance thereof is immaterial to the determination of the fact that his actions are inconsistent with the requirements of the high office of the District Land Valuation Officer.

viii. RPC Ntobi, OCD Mbelwa and OCCID Tarime for carrying out or supervising a vicious terror campaign and violent repression against the complainants intended to intimidate the complainants and prevent them from demanding their legal and constitutional rights and freedoms.

11. To report in terms of sections 28(1) and 28(3) of the 2001 Act the decisions and recommendations of the Commission and reasons thereof to the Director of Public Prosecutions (“the DPP”) with a recommendation that the said DPP should institute criminal proceedings against the parties referred to in Part B of the complaint for the violations of laws and fundamental rights described in the preceding parts of the complaint.

12. To make any other orders, recommendations or advice or to take any steps that the Honorable Commissioners shall deem fit, proper and just in order to secure the remedying of the wrongs committed against the complainants and the cessation of the continuing violations of the law, the Constitution and international human rights law as elaborated in Part E of the complaint.

Dated this 25 day of July 2003

SIGNED:

Tundu AM Lissu Vincent D. Shauri Rugemeleza AK Nshala
ADVOCATE ADVOCATE ADVOCATE

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Fecha del Recurso: 
2003
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