International NGO Fact-Finding Mission on Bulyanhulu Barred from Visiting Bulyanhulu Communities

LEAT's Response

On Thursday March 28, 2002, the Minister for Home Affairs, Hon. Mohamed Seif Khatib, issued a press statement regarding what he claimed as "deliberate contravention by LEAT of laws of the land and immigration laws." Minister Khatib's statement sought to justify the Government's action to bar an international NGO fact-finding mission from travelling to the Bulyanhulu area to meet with the communities affected by the Bulyanhulu Gold Mine, operated by Canadian-owned Kahama Mining Corporation Ltd. It was widely reported by the local and international media, both print and electronic.¹ We hereby respond to Minister Khatib's statement with the hope that we will set the record straight as well as deal with the numerous falsehoods and/or half-truths and innuendoes that have been spread in relation to the international NGO fact-finding mission's trip to Tanzania.

1. The Government Knew Well in Advance of the Fact-finding Mission

On March 14, 2002, LEAT wrote letters of invitation to Ms. Paula Butler at the Ontario Institute for Studies in Education; Professor Kathleen Mahoney at the Canadian International Centre for Human Rights and Democratic Development (Rights and Democracy) in Montreal; Mr. Stephen Kerr at the Varsity Newspaper in Toronto; and Mattias Ylstra at Both ENDS in Amsterdam. The copies of the letters were also faxed to the Tanzanian High Commission in Ottawa, Canada and The Hague in the Netherlands. As we were finding it difficult to fax copies of the invitation letter to Mr. Steve Herz at Friends of the Earth US and the Tanzanian Embassy in Washington DC, on March 20, 2002, we e-mailed the same to Mr. Herz with instructions that he should present it to our Embassy in Washington DC when applying for a visa.

All letters indicated that the invitees were being asked to travel to Tanzania to participate in "consultative meetings on mining and environmental sustainability in Tanzania" hosted by LEAT and scheduled for March 24 - 30, 2002. The meetings were to be "held at LEAT offices" in Dar es Salaam and thereafter "participants will participate in site visits to communities affected by the mining industry in Bulyanhulu, Kahama District - Shinyanga Region." It is clear, on the basis of the foregoing, that the Tanzanian Government - through its diplomatic missions in these countries - was informed well in advance of the mission's visit and certainly knew of the purposes of the visit.

This is emphatically confirmed by a letter from the Tanzanian High Commission in Canada to the Deputy Minister for Foreign Affairs and International Cooperation dated Tuesday, March 26, 2002 copies of which were availed to members of the press by Minister Khatib.² In there, a Mr. Gordon Ngilangwa, writing on behalf of High Commissioner Fadhil Mbaga, states that "the invitation letter from LEAT which was copied to this mission stated in its first paragraph that they were being invited to participate in consultative meetings on mining and environmental sustainability, to take place in Dar es Salaam. In the last paragraph the letter talks of a visit to Bulyanhulu." On the basis of this letter, the Tanzanian High Commission in Canada issued visas to Ms. Butler, Prof. Mahoney and Mr. Kerr on March 15, 2002.

We did not just inform the representatives of the Tanzanian Government abroad, we also notified the authorities at home about the impending visit. On March 18, 2002, LEAT members Vincent Shauri and Tundu Lissu informed Senior Superintendent of Police Lucas Kusima and Assistant Commissioner of Police King'wai, both from the office of the Director of Criminal Investigations (DCI) in the Police headquarters of the mission's impending visit. SSP Kusima and ACP King'wai advised LEAT to write an official letter to the DCI to inform him of the mission's visit as well as notify regional and district authorities in Shinyanga and Kahama respectively.

We complied with this sensible advise by writing two letters to the DCI on March 19, 2002. One concerned the impending investigation by the Office of the Compliance Advisor/Ombudsman (CAO) for MIGA and IFC following LEAT's complaint against MIGA's guarantee for the Bulyanhulu Gold Mine.³ We informed the DCI that the CAO had "officially notified us that she is sending a team of specialists from her office to commence investigations of the complaint." We further informed the DCI that the CAO had already informed the Executive Director of the World Bank responsible for Tanzania of the impending investigation, "for the purpose of asking the Government of Tanzania to fully cooperate with the investigation." We expressed our hope that, as complainants in this matter, LEAT and the Bulyanhulu communities expected the DCI "to cooperate fully with this important investigation by instructing your officers in Kahama District and Shinyanga Region to abide by the laws of Tanzania and stop harassing or in any way impeding our legally permissible activities such as organizing and holding meetings to discuss the complaint and matters relevant to it."

The second letter concerned the impending visit by the fact-finding mission and described the mission's purpose as being "to hold meetings with LEAT as well as visiting Bulyanhulu and other areas of Kahama District to meet with the communities affected by the forced removals from the Bulyanhulu mines in August 1996."⁴ The letter also disclosed that it intended to meet with "any other person with any relevant information concerning the facts and circumstances of the 1996 events in Bulyanhulu, including any police officers who may have participated in the removal operation, or investigated the subsequent allegations of the killings of artisanal miners." It further expressed the hope that the DCI would oblige "any officers in (his) department with the relevant information to appear for interviews with the members of the mission."

In addition, we mistakenly informed the DCI that Professor Mahoney had already notified the Government of the United Republic of Tanzania, through the Tanzanian High Commissioner in Ottawa, Canada.⁵ However, we also expressed the hope that the DCI will notify his subordinate officers in Kahama District and Shinyanga Region of the mission's visit and purpose thereof "with the view to facilitating its activities without let or hindrance." As advised by SSP Kusima and ACP King'wai, both letters were also copied and faxed to the Regional Commissioner, Shinyanga and the District Commissioner, Kahama respectively.

On March 22, 2002 CAO's Senior Specialist, Rachel Kyte arrived in Dar es Salaam to start investigating LEAT's complaint against MIGA and Barrick Gold Corporation's operations at the Bulyanhulu Gold Mine. Ms. Kyte was followed, a day later, by CAO Consultant John Ambrose. On March 24, 2002, the CAO team accompanied by LEAT's Tundu Lissu travelled to Bulyanhulu area and conducted investigations up to March 28 when Ms. Kyte and Mr. Ambrose returned to Dar es Salaam on their way back to Washington DC.

It is our understanding that the CAO investigating mission did not notify the Tanzania authorities save for the Executive Director of the World Bank responsible for Tanzania and that all information in the public domain concerning that mission was given by LEAT. However, the Tanzanian authorities did not prevent the CAO mission from visiting almost all areas surrounding the Bulyanhulu Gold Mine and from holding numerous public meetings with hundreds of villagers on whose behalf the complaint against MIGA and Barrick was lodged by LEAT at the CAO offices in Washington DC. This begs the question as to whether the real reason for preventing the NGO fact-finding mission from travelling to Bulyanhulu was the alleged failure to follow unnamed and, for us, non-existent laws and procedures or whether the authorities were frightened by the prospect of international NGO representatives meeting, for the first time, with persons who claim dozens of their loved ones were killed in the course of the 1996 events and their lives and livelihoods destroyed.

On March 23, 2002, the international NGO mission started to arrive in the country, with the arrival in Dar es Salaam of mission members Kerr, Ylstra and Herz. These were followed, two days later by Prof. Mahoney and Ms. Butler. It was by now over ten days since the Government became aware of the mission's visit and had not entered any objection whatsoever. Furthermore, the Tanzanian diplomatic missions in Canada, the US and the Netherlands had issued visas to the members of the mission on the basis that the mission would travel to Tanzania to meet with LEAT and to visit local communities in the Bulyanhulu.

2. Tanzanian Authorities Gave the Necessary Permits as Required by the Laws of Tanzania

In the meantime, on March 25, 2002, the DCI responded to LEAT's two letters of March 19.⁶ Apart from a mere acknowledgement of the letter concerning the CAO investigation, the DCI did not address himself to that investigative mission at all. As regards the international NGO fact-finding mission, the DCI did not in any way raise objections concerning the legality or otherwise of that fact-finding mission. On the contrary, all he did was to refuse the request to make his officers available for interviews with the international NGO fact-finding mission, stating that "there is no way the Police Force can participate or in any way assist or be involved in that mission since so far there is no official communication that we have received from the Attorney General (who) ... is the only person to sanction the same."

On March 26, 2002, the mission, now joined by Victor Peskin of the Centre for Human Rights of the University of California, Berkeley, flew to Mwanza and travelled to Geita which was to serve as its base. Accompanying the mission was LEAT's Vincent Shauri, with Mr. Lissu already in Geita with the CAO mission. That evening, the Geita District Police Commander, SSP Wilbard Mwanga arrived at the hotel the mission was staying in and served upon Messrs. Lissu and Shauri, a letter directing that the mission "should not conduct any investigation of the Bulyanhulu allegations or any other investigation until it has received a permit for the purpose from the Attorney General in Dar es Salaam."⁷ The letter claimed that this direction had been given by the DCI to the Mwanza Regional Police Commander, Elia Kihengu who relayed it to SSP Mwanga by telephone. It also claimed that the DCI had directed that the mission should immediately return to Dar es Salaam to obtain the alleged permit from the Attorney General. It threatened that should the mission go ahead with its plans without first obtaining the said permit, it would be contravening the laws of Tanzania which, however, were not specified.

Messrs. Lissu and Shauri immediately challenged SSP Mwanga on the legality of his letter, stating that it clearly ran counter to the DCI's letter to LEAT of only the day before. After discussing the situation, the mission agreed to seek clarification the next day from the RPC in Mwanza. On March 27, 2002, Mr. Lissu telephoned RPC Kihengu in Mwanza contesting the legality of the DCI's directive and challenged him to cite any single law that required a permit from the Attorney General for the mission to proceed on with its program. Upon RPC Kihengu insisting that the mission should return to Dar es Salaam, Mr. Lissu called the DCI in Dar es Salaam to protest that there were no valid legal grounds for the DCI's directive. Like RPC Kihengu, DCI Rajabu also insisted that the mission return to Dar es Salaam and seek permission from the Attorney General. Thereupon, Mr. Shauri called the office of the Attorney General in Dar es Salaam and spoke with the Deputy Attorney General and Permanent Secretary, Ministry of Justice and Constitutional Affairs, Mr. Kulwa Massaba. The latter informed Mr. Shauri that he knew of no statute or regulation that conferred the office of the Attorney General with any legal powers to issue the permit claimed by the DCI.

By this time, however, the police had deployed dozens of police units in Bulyanhulu area and had thrown a roadblock just outside Geita town on the Geita-Bulyanhulu road to prevent the mission from travelling to Bulyanhulu. There were also several visits to the hotel by police officers led by the Geita OCD Mwanga and OCCID Aloys Oswald to pressure the mission to leave Geita and return to Dar es Salaam. Later in the evening RPC Kihengu arrived in Geita and to the hotel to increase the pressure on the mission to leave Geita and return to Dar es Salaam.

Under intense pressure, on March 28, 2002, the mission returned by car to Mwanza and from there flew back to Dar es Salaam. That afternoon, Minister Khatib told a press conference in Dar es Salaam that the mission had been prevented from travelling to Bulyanhulu because it did not have any permit from the Tanzanian authorities to undertake an investigation of the Bulyanhulu events and that the members of the mission and LEAT misrepresented their activities to the authorities in their visa applications.

3. LEAT Did not Contravene any Laws of Tanzania

It is clear, from the foregoing, that neither LEAT nor the international fact-finding mission on Bulyanhulu were in breach of any of the laws of Tanzania. It is also clear that contrary to Minister Khatib's claims, the mission members did not misrepresent the purpose of their visit to Tanzania. As the letter from the Tanzanian High Commission in Canada shows, the Government was well aware of the mission's intention to visit Bulyanhulu as early as March 14 and issued visas the next day with that understanding. Indeed, in none of the official correspondence with the police authorities examined above did the DCI or any of his subordinate officers cite the alleged misrepresentation as a reason for preventing the mission from proceeding with its planned visit to Bulyanhulu.

It is obvious that having realized that the spurious claims that the mission required a prior approval from the Attorney General was a non-starter after Mr. Massaba, the Deputy Attorney General disowned it, the Government authorities went on a fishing expedition for an excuse to justify barring the NGO fact-finding mission from meeting with the Bulyanhulu communities and potential eyewitnesses to the events of August 1996. To state, as Minister Khatib did, that the mission was prevented from going to Bulyanhulu because they were issued with business visas and for no other purpose is a complete fabrication and a distortion of the facts that can only be believed if one completely disregards the factual background we have set out above. Indeed, we are not aware of any new category of visas issued by Tanzanian immigration authorities to cater specifically for fact-finding or investigative missions such as the CAO and the international NGO missions. On the contrary, it is our understanding that Tanzanian visas are generally grouped into tourist, business or residence categories. In our understanding, business visas cover a wide range of activities that are not tourist or residential such as that the international NGO fact-finding mission would legitimately fall under that category.

As regards the widespread claims that LEAT and the NGO mission failed and/or ignored to observe the relevant laws of the land, our response is simple and brief: What are those laws and/or regulations that we have "deliberately" contravened, Mr. Khatib? Which statute or by-law confers such powers as to issue the permits you allege to the Attorney General? As for the questions Minister Khatib raised in his press statement, we find it rather too embarrassing to note that the Honourable Minister appears not to have even read let alone understood the very clear letters of invitation we sent out and copied to our diplomatic missions abroad as well as the other letters we wrote to the DCI before members of the international NGO fact-finding mission even set their feet on Tanzanian soil.

As for the claim that ours is a government of truth and transparency, that is a highly debatable proposition as our experience with the Bulyanhulu controversy amply show. For a Government that claims to be transparent, why has it failed or neglected to tell the Tanzanian public how Kahama Mining Corporation Ltd., gained possession and control over the Bulyanhulu area in 1996 even though the license issued to it was over a completely different area in a completely different district in a completely different region! Indeed, why has this Government failed to even respond to allegations that it, under pressure from the Canadian Government through its High Commission in Tanzania, encouraged and/or condoned illegal acts perpetrated by the company and the security forces against the Bulyanhulu communities and in contravention of the lawful orders of the High Court of Tanzania.

Finally, the events of the past week make it even clearer that nothing short of a fully-transparent, open, public and completely independent commission of inquiry conducted by credible and respected international and national experts will suffice to resolve these most important and troubling questions. In our view, a commission of this kind has to be based, in the minimum, on the United Nations Principles for the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions to which, we would like to believe, Tanzania is a signatory.

This is all the more so given the ominous threats to the lives of our members who have worked on the Bulyanhulu controversy that have been delivered to them through anonymous phone calls; and the unknown individuals, thought to be security operatives in the employ of the Government who have been following them in recent days. In this respect, we would like to invite the Government and its security apparatus to openly and publicly dissociate themselves from these anonymous threats and to commit themselves to the proposition that LEAT members have not been targeted for physical elimination due to the organization's position on the Bulyanhulu controversy.

1. See, for instance, A. Yasini and L. Mayenga, "Bulyanhulu investigators expelled from the country", Majira, Friday, March 29, 2002; A. Komba, "Bulyanhulu investigators ordered to leave", The Guardian, Friday, March 29, 2002; "Bulyanhulu Killings Saga: Government expells five Whites: They came into the country to investigate: Minister says they lied in applying for visa", Nipashe, Friday, March 29, 2002; M. Islam, "World Bank completes Bulyanhulu mission", Mtanzania, Saturday, March 30, 2002; C. Kidanka, "Why were these Whites not prosecuted?", Jumapili Majira, Sunday, March 31, 2002; B. Luhanga, "The Government is wrong to kick out the Whites - Cheyo", Nipashe Jumapili, Sunday, March 31, 2002; L. Lukumbo, "Disgraced Bulyanhulu foreign probe team says...'We're sorry, but we'll meet again'", Sunday News, March 31, 2002; A. Kweka, "LEAT says Government knows what brought the Whites", Nipashe, Monday, April 1, 2002.
2. See letter Ref. No: TZO/I.220/5 on the subject of "Visas Given in Favour of LEAT's Invitees" dated March 26, 2002 and faxed to Dar es Salaam at 10:40 hours Ottawa (18:40 hours Tanzania time).
3. See letter Ref. No: LEAT/DCI/4on the subject of "Complaint Against Miga Guarantee For Barrick Gold Corporation's Bulyanhulu Gold Mine."
4. See letter Ref. No: LEAT/DCI/3 on the subject of "International Ngo Fact-Finding Mission On Bulyanhulu Killings."
5. It was Warren Almand, Rights and Democracy's President, and not Prof. Mahoney, who informed High Commissioner Mbaga of the mission's intention "to investigate alleged evictions at Bulyanhulu in 1996." See letter dated March 18, 2002 on the subject of "Delegation to Tanzania."
6. See letter Ref. CID/HQ/C.5/4/4/SHYR/VOL. VII/70 dated March 25, 2002 with the subject "International NGO Fact-finding Mission on Bulyanhulu Killing."
7. See letter Ref. No: GE/C5/4/4/VOL. 24/374 dated March 26, 2002, on the subject of "Directives from the Commissioner of Police Criminal Investigations in Tanzania (DCI)" (sic!)