Interrogating the legal regime for free, prior and informed consent and community rights in the context of mining activities in Zimbabwe

Abstract

Th concept of free, prior and informed consent has gained traction globally, particularly in states where development has clashed with communities. This research has interrogated the nature and scope of this concept, and highlighted the international, regional and domestic legal regimes for FPIC. In its entirety, the research adopted a desk study, and embraced the doctrinal analysis of the relevant legal regimes. The main argument carried throughout this research was that the conflict between mining investment operations and community rights can only resolved by a legal and institutional system that is underpinned by principles of FPIC. In following with this argument, the research made the finding that there is a comprehensive body of norms and principles underpinning FPIC in international and regional treaty frameworks. It has further demonstrated that the domestic legal regime has not accommodated principles of FPIC, despite clear guidance from international and regional treaty frameworks. Resultantly, there are massive gaps and flaws in Zimbabwe’s domestic law relating to FPIC. Communities continue to be exposed to the whims of mining operations such as land dispossession, forcible relocation with paltry compensation and without full consultative processes. There are no functional dispute and conflict resolution mechanisms to address the conflict between community rights and the right of mining investors. In all situations of conflict, the strength of mining rights has dominated the communal based rights of communities. State level institutions have always worked against community rights and in favour of mining investor. It is in light of these positions that the research made key recommendations to enhance the legal and institutional system related to FPIC implementation. The law must be reconsidered so that it is infused with FPIC principles; land rights of communities must be strengthened; consultative frameworks with real community participation must be ingrained in the law; local level dispute and conflict resolution mechanisms must be formulated and implemented at community level and regulations for the monitoring, enforcement and implementation of remedies must be developed.