by Roger Nellist
Tanzania’s mining sector in difficulty – the background
As reported in TA117, in March the government took the controversial step of banning the export of mineral concentrates and ores for metallic minerals such as gold, copper, nickel and silver. Later the same month, President Magufuli had intervened personally, ordering the seizure at Dar port of 277 containers of mineral sands destined for export mainly from two gold mines operated by Acacia Mining (Tanzania’s largest gold-producer), and asserted: “There is no country being robbed of its mineral wealth like Tanzania”. Samples were taken from the sands for analysis. Several foreign mining companies were immediately affected by the export ban but local miners and other entities also expressed concerns. In April, Magufuli established two expert teams to report to him quickly on different aspects of the mineral sand exports. Since then the saga has intensified, triggering an avalanche of robust follow-up actions by government – including more sackings and contentious new legislation.
Tanzania is variably listed as Africa’s third or fourth largest gold-producing country so, unsurprisingly, the saga has generated much news coverage and comment, both in Tanzania and abroad. There have been headlines like: “Industrial-scale plunder of Tanzania’s mineral wealth by multinational companies”, “Probe team unearths massive thievery in mineral sand exports”, “Tanzania has been losing trillions of shillings in revenue” and “Tanzania’s Acacia spat shows deepening battle with business”.
Two Presidential probe reports
President Magufuli received the two reports in person at State House, presented by the respective expert teams, with the presentations broadcast live on national media. The first took place on 25 May, led by Prof A. Mruma, the head of the Geological Survey of Tanzania. Their report found that the containers impounded at Dar’s port held real minerals with a value totalling up to TSh 1.4 trillion that had not been declared for tax or recorded by the Tanzania Minerals Audit Agency (TMAA). Minerals discovered in the concentrates included gold, silver, copper metal and sulphur, as well as quantities of undeclared strategic minerals like lithium. The team said it found an average of 1.4kg of gold per tonne of mineral sand in the containers, seven times as much as reported by TMAA. It also uncovered other discrepancies. Mruma’s committee recommended that the export ban on metallic mineral concentrates be maintained, effective scanners be installed at Dar’s port, containers be sealed immediately after testing, that government should ensure smelters are built in Tanzania to maximise the full value of minerals produced and that disciplinary action should be taken against officials in the Ministry of Energy & Minerals (MEM) and in the TMAA.
On 12 June Magufuli received the second report, concerning the economic impact of the mineral sands exports. This team, led by Prof N Osoro, estimated that between 44,000 and 61,000 containers of gold and copper concentrates had been exported between 1998 and March 2017, most emanating from two mines run by Acacia (formerly Barrick Gold). It estimated losses in government revenue running into trillions of shillings over the two decades – through under-declaration of both export volume and value of gold and copper concentrates. Magufuli announced: “The report says the amount of unpaid taxes between 1998 and March 2017 through illegal exports of gold and copper concentrates is between TSh 68.59 trillion and TSh 108.5 trillion”. Such sums would be enough to cover Tanzania’s national budget for three years and build about 1,000 kms of railway line between Dar and Mwanza. Describing the losses as “criminal”, Osoro’s committee made 21 far-reaching recommendations – principally that: responsible senior public officers (past and present) should be charged with complicity in tax evasion, abuse of public office, economic sabotage and fraud; all Mining Development Agreements (MDAs) and mining laws should be reviewed; all new MDAs should be approved by parliament and the terms of all MDAs should be made public; government should take a stake in all large mines; overly generous tax concessions should be removed; and there should be strengthened security at mines to reduce smuggling.
The government’s response
Inevitably, the two reports produced very strong reactions from many quarters, including demands for a major overhaul of Tanzania’s mining laws and arrangements. In a parliamentary session after the first report, MPs were close to unanimous in expressing their shock. They offered many suggestions on what should be done and called for officials in MEM “who have been telling lies” to be investigated. They also called for Energy & Minerals Minister Sospeter Muhongo and his Deputy Minister to be held to account for the mistakes of their subordinates and, since the scandal has been ongoing for years, for his predecessors to be investigated too.
President Magufuli took quick action. Immediately after publication of the first report he cancelled Muhongo’s appointment as Minister, saying “The Minister is my friend but I want him to reconsider his position …. I am advising him to step down”. State House indicated that there would be no immediate replacement for him. Magufuli also dissolved the Board of TMAA and suspended its CEO. These sackings came on top of the earlier dismissal of MEM’s Permanent Secretary, allegedly for lying to parliament about the concentrates.
The President was incensed after receiving the second report on the revenue losses. Saying he was left “utterly speechless” by its findings, in a televised response he declared: “Enough is enough. We have been given raw deals for too long and this has to end. … Even the devil is laughing at us over our own self-inflicted level of poverty amid natural wealth given to us by God.” He demanded that Acacia Mining – if it wanted to continue mining in the country – pay billions of shillings in tax due since 1998 as arrears and dared the company to sue his government. Calling on Acacia to repent, Magufuli said he would not discuss anything with the company whilst debts were pending. He ordered that all 21 recommendations made in the Osoro report be implemented immediately. In early July he went further, ordering MEM not to issue any new mining licences or to renew expiring ones.
On 14 June, with only a few dissenting voices, parliament passed a resolution praising Magufuli for his actions. One MP said “this is war…. economic war”.
Then on 3 and 4 July Parliament considered and approved three hastily-prepared bills tabled by the Minister for Constitutional and Legal Affairs, Prof P. Kabudi. The three Acts (see below) make amendments to six existing laws (including the Mining, Petroleum and Income Tax Acts) aimed at strengthening government control of Tanzania’s mineral and petroleum sectors and increasing revenues from extraction activities in those sectors.
The Natural Wealth and Resources (Permanent Sovereignty) Act 2017 asserts that all natural resources belong to Tanzania and will be used only to benefit the country. It requires all disputes between the government and investors to be settled in Tanzania (no foreign arbitration) and compels companies to process minerals within the country rather than exporting them as raw materials; mineral concentrates if not smelted by the producer will be sold to whoever is able to smelt them in Tanzania and pay taxes due. We understand that this Act also allows government to own up to 50% of mining firms, and requires all earnings from the exploitation of natural resources to be banked in Tanzania (foreign mining companies may remit dividends only).
The Natural Wealth and Resource Contracts (Review and Renegotiation of Unconscionable terms) Act, 2017 requires all natural resource contracts to be made public, that parliament must endorse them, and allows the government to revoke contracts if they have “unconscionable terms” or are otherwise prejudicial to the interests of Tanzanians.
The Written Laws (Miscellaneous Amendments) Act 2017 dissolves the TMAA and replaces it with a Minerals Commission (with most of its nine members being serving Permanent Secretaries).
The debate on the three Bills, rushed through parliament in just two days, was heated, with many differing views expressed. CCM MPs supported their immediate consideration but opposition MPs questioned the urgency, arguing for more time for their public and parliamentary scrutiny. One CCM MP cautioned that “these are revolutionary measures. We need to understand what we are getting in to. … Multinationals may decide to pull out from our country and adversely affect our current account and the value of the Tanzanian shilling”. He added that to balance the risk of such negative outcomes from “our economic freedom fight” the government should invest more in small-scale mining.
The mining industry’s response
Acacia Mining operates three mines in Tanzania. Whilst its Mara North mine produces almost pure gold (and was not the subject of the probes) its two other gold mines (Bulyanhulu and Buzwagi) produce mixtures and were investigated. The company announced in April that the concentrate export ban was costing it about $1 million daily, and its shares fell on the FTSE 250 Exchange.
After the first probe report findings were publicised Acacia’s share values dropped by more than 15% in minutes. The company stated it had fully co-operated with the committee and maintained it fully declares everything of commercial value and pays all appropriate royalties and taxes on all payable minerals produced.
After the release of the second report’s findings Acacia called for an independent review of both Presidential committee reports, asserting that they contained inaccurate and unexplainable findings and allegations. It strongly refuted the “unfounded accusations”, insisting it is a law-abiding company, mining in full compliance with Tanzanian laws, paying all royalties and taxes due and publishes fully audited accounts. It called for a lifting of the mineral sands export ban (saying it was hurting its ability to conduct business in Tanzania and also badly affecting the lives of thousands of Tanzanians) and called for a resolution of the current situation. Over the last 20 years Acacia/Barrick has invested US$4 billion in Tanzania’s mining sector. In all, Acacia’s shares are now priced at less than half of their value of twelve months ago.
Within days of the second report being presented to the President, the Executive Chairman of Acacia’s majority shareholder, Barrick Gold Corporation of Canada, flew to Dar to hold talks with Magufuli. He said he wanted to help resolve the problems and, after the discussions, he and Magufuli announced they will establish two expert teams to begin negotiations to that end. The Chairman said he was optimistic about reaching a solution – one that will involve payment of any past dues and also arrangements for establishing a smelter in Tanzania. Acacia said it would not participate directly in the government-Barrick talks but would work to support Barrick.
On 4 July, before the new legislation had been signed into law by the President, Acacia filed arbitration notices in Tanzania in order “to protect the company”. It reiterated that “Acacia remains of the view that a negotiated resolution is the preferable outcome to the current disputes and the company will continue to work to achieve this”. It is understood that production continues at Acacia’s three mines.
All other mining companies in Tanzania will also be impacted by the government’s recent actions. The Tanzania Chamber of Minerals and Energy, representing the industry, said the implications of the new laws (which it had opposed) are “vast”, adding that “the industry is going to be affected big time” and that it will need extensive legal advice. External commentators are expressing concerns that, even though Magufuli has said the private sector is “an important ally”, his robust actions will unsettle other investors. One pointed to the US$ 19 billion of major infrastructure projects the government has in the pipeline and for which it needs private investors, reminding that other large private investment projects in Tanzania have also been jeopardised this year. Another commentator opined that Tanzania’s mining sector is deteriorating from a situation of relative stability and sense to becoming “yet another African basket case”.