Tanzanian Judge Dismisses AFGEM Suit

By Hamza Kondo

AFGEM's tanzanite processing plant in Merelani. Photo courtesy AFGEM.

DAR ES SALAAM, TANZANIA - Before a packed court chamber, Chief Judge Hamisi Msumi of the High Court of the United Republic of Tanzania dismissed, with costs, a lawsuit filed against tanzanite mining company African Gem Resource Ltd. (AFGEM) and six others.

The chief judge's decision, handed down on August 22, was unanimously supported by a full bench that included Senior Judge Buxton Chipeta and Judge Luhekelo Kyando.

The plaintiffs included the Federation of Miners Association of Tanzania (FEMATA), the Arusha Regional Miners Association (AREMA), and FEMATA Corporation Ltd. (FEMICO). They filed the controversial suit on April 20, 2001 at the United Republic of Tanzania High Court in Dar es Salaam.

In their suit, the plaintiffs claimed that AFGEM was violating the human rights section of Tanzania's constitution, allegedly beating and shooting miners who attempted to interfere with their operation. The plaintiffs had requested that AFGEM subsidiary Merelani Mining Ltd. (MML) be ordered to halt its mining operation in Block C of the Merelani mining claims and pay financial compensation of more than US$3 million.

The high court judgment stated that the plaintiffs' counsel, Robert Rweyemamu, failed to establish that there was a constitutional human rights violation and so ordered the case dismissed and the plaintiffs to pay respondents their costs.

"In order for a cause to be a constitutional one, the human rights alleged to be violated must be proved beyond reasonable doubt. In this suit, the claimants have failed to do so," the chief judge stated.

He explained that allegations by the petitioners, such as killings and beating of small miners alleged to have been done by some AFGEM management personnel, were a criminal matter rather than a constitutional one, and would require a different type of suit.

The High Court judgment emphasized that there were no human-rights violations committed by the defendants according to definitions in Tanzania's constitution. The document covers rights such as freedom of speech, equality before the law, citizens' right to care for the national wealth and security, and prohibition of discrimination, among others.

A local miner protests AFGEM during the early stages of the conflict. Photo by Hamza Kondo.

Plaintiffs also claimed that under Tanzania's Mining Act of 1998, former Minister of Energy and Minerals Abdallah Kigoda had acted illegally in granting a special license to AFGEM to mine Block C of the Merelani mines. Kigoda, who left his post in 2000, has since become the state minister in the President's office of planning and privatization.

Msumi dismissed the plaintiffs' claims, siding with the defendants' counsel. "Minister Kigoda granted a special license under a legal authority empowering him as a minister, so he cannot be sued for implementing his duties allocated legally by the government. Instead, he could be sued for his personal illegal deeds or acts," Msumi explained.

Asked for comment after the decision was handed down, plaintiffs indicated they were not happy with the ruling, but declined to speak for the record. Two weeks after the ruling, AREMA issued a press release stating that they plan to appeal.

In a statement released shortly after the ruling, AFGEM hailed the decision as a victory for foreign investors in Tanzania. "The finding of the court endorses Tanzania's integrity as one of Africa's premier investment destinations," MML Chairman Ami Mpungwe said.

With the suit settled, at least for the moment, AFGEM is focusing on getting its production up to speed and continuing its marketing plans. According to company spokesperson Joanne Herbstein, the company expects to have commercial production beginning in the first half of 2002, with small amounts of branded tanzanite available after the middle of the year.

"Our marketing strategy is a work in progress," she said. "Ideally, we would like to continue setting up ‘distribution partner' relationships with dealers and manufacturing jewelers . . . Our main target regions are the U.S., the Far East (namely Japan) and Europe (namely Italy and Germany)."

However, the company is not neglecting its relations with the local miners of Merelani. MML General Manager Joe Kimble explained his steadfast commitment to AFGEM's vision and to continuing to work with small-scale miners to develop the industry for the benefit of everyone.

"With the security we have assured by the court's decision," Kimble told Colored Stone in Dar es Salaam, "we can now look forward to constructive dialogue with small-scale miners and their legitimate associations, with a view to ensuring that they too benefit from the growth and formalization of the tanzanite industry."

Previous articles on the conflict between local Tanzanian miners and AFGEM: Tensions Boil Over at Tanzanite Mines, Merelani Mining Conflict Results in Death, and Tanzanite Miners Await Ruling Against AFGEM.