...and the Proviso Disposes

The legislative developments examined in this part should not, however, be taken at their face value as they reveal, at best a half-hearted attempt at introducing EIA into the corpus of law, and at worst a cynical public relations charade and a manipulation of the philosophy and principles underlying EIA. The Marine Parks and Reserves Act, 1994, does not, as we have seen, provide any guidance as to how its EIA requirements will be put to effect and by which institution. And as we have seen, there is not much precedent, legal or otherwise, in other legislation, which may shed light as to how, these provisions will be made effective.

The Mining Act, 1998, on the other hand, contains provisions which seriously water down and may - given Tanzania's politico-administrative context and historical experience - render useless the rigorous environmental management and protection provisions examined above. This relates to omission of requirements for public participation in the EIA processes and the wide discretionary powers, which the Minister enjoys under the Act. The fact that ministerial discretion in public decision-making processes in Tanzania has been widely abused for personal gain has been widely documented. The verdict of the Presidential Commission of Inquiry Against Corruption (the Warioba Commission) published in November 1996 was unequivocal in this respect: "… (T)he country has witnessed the disappearance of transparency in transacting public business at all levels. Discretionary powers have been used in a manner that has created loopholes for favouritism and discrimination.… The basis on which decisions are taken has not been clear. This situation has created big loopholes for corruption and has generated more corruption" (Tanzania, 1996, Vol. 1:63-4).

Abuses of tax exemption powers, imports support schemes, awards of Government contracts, grants of hunting concessions, land allocations, overseas medical treatment, etc. involving high state officials and senior politicians were also extensively documented and acknowledged by the Warioba Commission which, in its stinging report, denounced the "grand corruption involving high level leaders and public servants whose involvement in corruptive practices is a result of excessive greed for wealth accumulation and money" (ibid., Vol. 1:5; original emphasis). These widespread abuses were made possible by the overbearing concentration of powers and authority in the executive organs of the state as exemplified by wide discretion with little or no meaningful 'checks and balances' and accountability of the rulers to the ruled.

That wide ministerial discretion has been a running theme in Tanzania's legal and constitutional history also finds ample proof in the Mining Act, 1998. Under section 10(1), for instance, the Minister may enter into a development agreement not inconsistent with the Act with a holder or an applicant for a mineral right relating to the grant of mineral rights, the conduct of mining operations under the special mining license or the financing of any mining operations under the special mining license. This agreement may contain provisions which are binding on the Government relating to the special mining license or the mining operations to be conducted under the said license which guarantee fiscal stability of a long term mining project and for that purpose make special provisions for payment of royalties, taxes, fees, etc. (op. cit., s. 10(2)(a).

The effect of this provision is that where, say, the holder of a special mining license informs the Minister that payment of royalties, taxes or mining fees in respect of his mining operations will cause 'fiscal instability' to his project the Minister may enter into an agreement with the holder of the license to waive or defer the payment of the royalties, taxes or fees, thus restoring the mining project to 'fiscal stability'! Given the often secretive, usually technocratic and generally unaccountable ministerial decision-making processes in this country, the opportunities for "grand corruption", favouritism and malpractice abound in the exercise of discretion under this section.

The agreement between the Minister and the holder or applicant of a mineral right may also contain provisions relating to the circumstances or manner in which the Minister or the Commissioner of Mines (another licensing authority under the Act) may exercise discretion conferred upon them by the Act or the Regulations (op. cit., s. 10(2)(b). Here the Minister or the Commissioner may agree to defer the payment of the said royalties, taxes or fees or reduce the rate thereof. Indeed under section 64(2), the Minister may exempt an applicant for a mineral right from the Regulations after the particular applicant has submitted to the Minister a requirement for the consideration of environmental information!

The agreement between the Minister and the holder or applicant for a mineral right may also contain provisions relating to environmental matters including in respect of matters which are project specific and are not covered by regulations of general application, provisions intended to define the scope and limit the extent of obligations or liabilities of the holder of a special mining license (op. cit., s. 10(2)(c). Here the Minister may choose to overlook the requirements for the commission and submission to him of an EIA or an EMP for a specific project. Indeed, under the proposed regulations for environmental management and protection, the Minister may direct that a particular application is exempt from the Regulations or it requires consideration of environmental information and is, therefore, subject to the Regulations (see reg. 3). Again the result is likely not to be the elimination of corruption and inefficiency but the creation of new networks of patronage that encourage their own forms of political corruption and cronyism. Tanzania is not likely to be an exception in this respect as these processes have also been observed by scholars and publicists in other countries (see, for instance, Hildyard, passim.)

Compared to the wide latitude that the Minister and other functionaries within the Ministry of Minerals enjoy, opportunities for public participation in decision-making processes concerning such matters as granting of mining licenses and the negotiation of the terms and conditions under which the grantees shall operate are conspicuous by their absence. The role of the general public in such important and public processes as preparation, review and approval of EIA studies in respect of mining projects has also not been provided for. As we shall see with examples of what is happening in the mining areas, this want of public participation has serious implications on the various rights and interests of stakeholders such as local communities in mineral rich areas.