Today 13th September 2019, Acacia Mining Plc and its operations have become fully part of Barrick Gold Corporation. Surprisingly, the Parliament and all other oversight bodies have been SILENT to respond or react to the matter. For instance, taking into consideration Section 12 of the Natural Wealth and Resources (Permanent Sovereignty) Act 2017 and Section 4 the Natural Wealth and Resources Contracts (Review and Re-negotiation of the Unconscionable terms) Act, 2017 requires the Parliament of Tanzania to review ANY arrangements or agreements made by the government relating to Natural Wealth and Resources i.e Mining. . This process is necessary to ENSURE EFFECTIVE PERFORMANCE OF OVERSIGHT AND ADVISORY FUNCTION OF THE NATIONAL ASSEMBLY as stipulated under article 63 (2) of the Constitution.
Secondly: In the framework agreement, Barrick and the Government of Tanzania agreed to reflect on the 50/50 split of economic benefits from the operations, as well as, involvement of the government in the management of the Barrick assets.
The Principle of 50/50: Public expectation of the 50/50 was that the government and the company will share equally profits generated by the projects rather than the calculated taxes which would have been paid to the government anyhow.
Inconsistency of the Law including but not limited to;
- Section 126 of the Mining Act 2010 (CAP 123 Revised Edition 2018) provides for mining companies in Tanzania to list their shares in the Dar es Salaam Stock of Exchange in a manner that stipulated in the Capital Market and Securities Act (Section 109) for Tanzania Nationals to buy shares and take stake in the venture. However this is contrary to the new arrangements- Barrick not to list its shares in the Dar es Salaam Stock Exchange (DSE):
- Section 100E (1) prohibits the use of stabilization arrangements that entail the freezing of laws or contracting away the sovereignty of the United Republic of Tanzania. Nevertheless, the Barrick new arrangements provide that “THERE WILL BE NO CHANGE OF THE LAW BETWEEN THE DATE OF SIGNING THE AGREEMENT AND THE LIFE TIME OF THE BARRICK OPERATING COMPANIES – North-Mara, Bulyanhulu, Buzwagi etc.
- Corporate Social Responsibility (CSR); Accounting wise and technically, this Act has never been a cost to any production as practically undertaken as an act of doing well with part of the profit, seen as a charitable or voluntary measure is now expected under the Barrick deal to be charged as an operating cost charged under the corporate income tax. Section 102 of the Mining Act 2010 (revised in 2017) underscores the responsibility of mining companies to be involved in the provision of services. Furthermore , since there is no cap in terms of what percentage should be provided by the companies in relation to CSR, the Tanzanian Finance and Tax related legislation are silent on taxing CSR. Thus, there is need for the Government through the Parliament to consider the amendments of the related laws. And this change should be in reflection of all mining related to be charged as an operating cost
- Arbitration: Section 11 of the Natural Wealth and Resources (Permanent Sovereignty) Act 2017, provides that Tanzania SHALL NOT be subject of proceedings of ANY foreign court or tribunal thus all disputes in the mining sector shall be adjudicated by the Judicial bodies or established bodies established in accordance with the United Republic of Tanzanian Laws: . However, in the first and second schedules of the law, looking at UN General Assembly resolutions in permanent Sovereignty over natural resources and the Chapter of the Economic rights and duties if states provide for all disputes to be handled through international adjudication.
- Free- carried interest: Section 10 (1)of the Mining Act , 2010 (Revised edition 2018) provides that in any mining operations licence i.e mining licence or special mining licence, the government SHALL NOT have less than 16% non-disputable free-carried interest shares in the capital of mining companies in Tanzania. And in addition, the law provides mandatory entitlement for Tanzania to acquire up to 50% of shares. Nonetheless, Barrick and the Government have managed to agree into diluting the government share and that SHALL ONLY be limited to 16% prohibiting more acquisition of shares. Who is to be blamed?
- Value addition: Section 9 (1) (2) of the Natural Wealth and Resources (Permanent Sovereignty) Act 2017 provides for NO exportation of the raw resources for beneficiation outside the jurisdiction of the United Republic of Tanzania. However the law provides for Mining companies to commit to establish beneficiation facilities within the country. Nonetheless, Barrick and the government negotiators have decided to disregard the provisions of the law stating that, mining operating companies (TMCs) SHALL NOT at any time have ANY OBLIGATIONS to establish beneficiation facilities in Tanzania. With such arrangements, analyst will be tempted to argue that the realization of vision 2025 and the industrialization agenda through use of natural resources would at a point be compromised and remain to be a fantasy.
- Read more: The Downfall of Acacia – Web and BARRICK-TANZANIA AGREED FRAMEWORK