IV. Background

ZANU-PF under President Robert Mugabe has ruled Zimbabwe as a de facto one-party state since the country's formal independence from colonial rule in 1980. As recent Human Rights Watch reports have shown, the government has suppressed political dissent, and has detained, tortured, or killed scores of people belonging to or supporting the opposition Movement for Democratic Change (MDC) party. Following its first parliamentary defeat in March 2008, ZANU-PF and its allies unleashed violence on MDC supporters ahead of a presidential run-off election, killing at least 163 MDC activists and injuring or displacing from their homes thousands more.[2] After MDC presidential candidate Morgan Tsvangirai pulled out of the run-off, the Zimbabwe Electoral Commission (ZEC) controversially declared Robert Mugabe the winner, triggering a political and governance crisis that was only resolved by the formation of an inclusive government in February 2009 in which Morgan Tsvangirai agreed to become prime minister and accept Robert Mugabe as president in a power-sharing agreement.

Over the past several years, the government has plunged Zimbabwe into economic crisis, characterized by 80 percent unemployment and severe hyper-inflation. ZANU-PF's land-grab policies have triggered the collapse of the agricultural sector, along with the country's diversified manufacturing and tourism sectors.[3] By the end of 2008, the government was increasingly unable to pay its civil servants and middle- and low-ranking soldiers. The disastrous humanitarian situation included a cholera outbreak that erupted in August 2008 and infected close to 100,000 people and claimed more than 4,200 lives; a public health system that has collapsed; and three-quarters of the population who are now in need of food aid.[4] With the assistance of the World Health Organization and its Global Outbreak Alert and Response Network, the power-sharing government of Zimbabwe appears to have brought cholera under control, with the numbers of reported new cases and fatalities significantly decreasing.[5]

To shore up its power, ZANU-PF since 2000 has relied upon a patronage system to reward and retain the loyalty of the military. Former and sitting military officers have been appointed as ministerial permanent secretaries, directors in ministerial departments, provincial governors, and other key posts.[6] Because of its need for revenue, ZANU-PF in government has tried to increase its influence and control over the mining industry, which accounted for 40 percent of Zimbabwe's exports in 2008.[7] It has also sought to placate its popular base by demonstrating an effort to manage the country's resources. On March 7, 2008, three weeks before national elections, President Mugabe signed into law the Indigenization and Economic Empowerment Act, which requires all public companies to be 51 percent owned by "indigenous" Zimbabweans.

Diamonds in Marange-Unclear Legal Title to the Fields

In June 2006 villagers discovered diamonds in the Chiadzwa area of Marange district, which geologists estimate to be spread over a 26-square-kilometer area.[8] The diamond fields are commonly referred to as the Marange diamond fields. Chiadzwa is a remote, dry, and hilly area comprising some 30 villages that are divided into two administrative wards (Mukwada, ward 29 and Chiadzwa, ward 30). The combined population of the two wards is estimated to be 20,000.[9] The nearest city, 100 kilometers to the northeast, is Mutare, the provincial capital of Manicaland; and to the south, the nearest town is Birchenough Bridge, about 60 kilometers away. Diamond mining is concentrated at the foot of Shonje hills, over a sparsely populated 13 square kilometers.[10]

The Marange diamond fields brought the number of diamond sites in Zimbabwe to three.[11] The other two sites-River Ranch and Murowa diamond mines-are deep mines exploited by private commercial enterprises. The discovery of a third diamond field raised the potential for the mining industry to generate further much-needed revenue for Zimbabwe.[12] Many in the local community initially viewed the discovery as a godsend that would cushion them from Zimbabwe's increasingly harsh economic crisis.[13]

Initially, the government's plan was for the Marange fields to be developed privately. From March 2002 to March 2006, Kimberlitic Searches, a subsidiary of South African diamond conglomerate De Beers Company, operated under two "Exclusive Prospecting Orders" (EPO 1520 and 1523) from the government of Zimbabwe, granting it full exploration rights to search for minerals in the Marange communal area.[14] The exploration certificates expired on March 28, 2006, and De Beers did not renew them.[15] After Kimberlitic Searches ended its operations, a United Kingdom-registered company, African Consolidated Resources (ACR), through its four Zimbabwean subsidiaries, registered exploration claims over Marange diamond fields with relevant authorities.[16] The claims gave ACR exclusive rights to explore and search for diamonds and other precious stones in Marange district.

At the time that Marange diamonds were discovered in June 2006, ownership of exploration rights over Marange diamond fields was vested in ACR. But the government moved quickly to "cancel" ACR's legal title and rights on the grounds that they had been improperly conferred to ACR in the first place. Police forcibly removed and barred ACR staff from accessing the diamond fields despite a magistrate's order directing the police not to interfere with ACR rights and operations.[17]

The minister of mines, Amos Midzi, then granted exclusive mining and exploration rights in Marange to a state-owned company, the Zimbabwe Mining Development Corporation (ZMDC).[18] Zimbabwean authorities explained that the purpose of granting the ZMDC prospecting and mining rights was to restore order to Marange following the diamond rush that ensued shortly after the discovery of the gems.[19] In February 2007 President Robert Mugabe publicly announced the government's intention to take over the mining of diamonds in Zimbabwe when he said, "Only government will mine diamonds."[20]

Illegal Mining and Smuggling in the Marange Diamond Fields

The government effectively fostered the diamond rush at Marange. In an apparent attempt to get political mileage from the discovery, ZANU-PF authorities in June 2006 declared the diamond fields free and open to anyone wishing to look for diamonds. From July 2006, a diamond rush began, with thousands of people from other parts of Marange district, other parts of Zimbabwe, and other countries scrambling for the precious stones. The Minerals Marketing Corporation of Zimbabwe (MMCZ), the sole licensed buyer of diamonds until January 2009 when it was replaced by the Reserve Bank of Zimbabwe (RBZ), appears to have encouraged the view that the government tolerated illegal mining by purchasing diamonds from unlicensed local miners, in violation of the Precious Stones Trade Act. On September 25, 2006, Deputy Mines Minister Tinos Rusere addressed local miners in Chiadzwa and told them to continue mining and selling their diamonds to the government.[21]

Most diamond miners were Zimbabweans from outside Marange district-from impoverished high-density suburbs of Mutare, such as Chikanga and Dangamvura, or from Harare, Bulawayo, Kwekwe, and other Zimbabwean municipalities. Those who flocked to Zimbabwe to dig for or to buy diamonds also came from as far as South Africa, Botswana, the Democratic Republic of Congo, Mozambique, Equatorial Guinea, Nigeria, Lebanon, Pakistan, the United Arab Emirates, Belgium, and India.[22] When the scramble peaked in October 2008, more than 35,000 people were either mining or buying diamonds in Marange.[23]

Principal Buyers and Smuggling Routes

Human Rights Watch was not able to fully pursue the global chain of purchase of diamonds from Marange, but Human Rights Watch's research suggests that the majority of Marange diamonds have been smuggled out of the country via Mozambique, South Africa, and Harare international airport, and then shipped to Lebanon, the United Arab Emirates, India, Pakistan, and Europe, among other destinations.

The buyers of Marange diamonds fall into two categories:

• "Agents" or middlemen (mostly Zimbabweans) who travel to the diamond fields to buy diamonds from individual miners, syndicates, or others on behalf of principal buyers;
• Principal buyers themselves (known as "barons"), often based in Mutare, Harare, Mozambique, or South Africa. These buyers, who often enjoy political, military, police, or other official patronage, in turn sell the diamonds to other buyers in the international community.[24]

One middleman told Human Rights Watch that he often travelled to Mozambique to sell diamonds to different foreign buyers based there.[25] Another middleman told Human Rights Watch that he would make weekly trips to sell Marange diamonds to buyers based in Johannesburg, South Africa. He told Human Rights Watch:

Diamonds are easy to smuggle because of the very high concentration of value in very small stones that does not set off metal detectors. Often l would hide my stones in toothpaste, or shaving cream, or under my car seat, or in my belt. When l had a high value gem, from 15 carats, l would swallow it and then retrieve it later.[26]

According to miners who spoke to Human Rights Watch, diamonds were not always exchanged for cash; sometimes the diamonds exchanged hands for clothes, cars, food, sex, mobile phones, or marijuana.[27] At times, foreign smugglers without middlemen travelled to Marange to buy diamonds directly from the miners. Scores of homes in the district have been rented to foreign nationals with connections to diamond mining.[28]

As early as September 2006 Zimbabwe authorities had acknowledged that the smuggling of Marange diamonds had become a serious problem. Soon after, the Ministry of Mines directed the MMCZ to "mop up all diamonds in Marange and reduce the quantity of diamonds that were illegally leaving the country."[29] From October 2006 the MMCZ moved into Marange and began trying to purchase diamonds from illegal, unlicensed local miners.[30] But MMCZ officials only added to the number of middlemen operating. They paid out token cash sums as incentives to get miners to hand in stones that they had extracted and to stop them from trading with foreigners or smuggling the gems.[31] But the MMCZ offered prices that were far below market value and much lower than those offered by foreign smugglers, so their interventions failed to halt smuggling and illicit trading.[32]

Although geologists have not yet scientifically estimated the value of the Marange diamond fields, the governor of the Reserve Bank of Zimbabwe, Gideon Gono, on various occasions has estimated that, if properly managed, Marange diamonds have the potential to earn the government US$1.2 billion per year in revenue.[33]

Laws Governing the Diamond Industry in Zimbabwe and Applicable International Standards

Zimbabwe's Mines and Minerals Act, 1961 (Chapter 21:05), colonial-era legislation that has been amended and remains in effect today, vests all the country's mining and mineral rights in the president and prescribes ways by which such rights can be acquired by individuals and corporate entities. The act provides that any person may apply for a prospecting license, "Exclusive Prospecting Order" (EPO), with any mining commissioner. The prospecting license or EPO grants the holder the rights to prospect and search for any minerals on land open to prospecting, but not to remove or dispose of any minerals discovered.[34] A holder of a prospecting license or EPO is not permitted to mine for minerals; once a discovery of minerals is made it must be registered as a mining location for which a mining lease or a special grants license must then be secured to permit lawful mining.[35]

The Precious Stones Trade Act (PSTA), 1978 (Chapter 21:06) regulates the possession of and dealing in precious stones, which include rough or uncut diamonds, rough or uncut emeralds, and, following amendment of the PSTA in November 2007, industrial diamonds. The act prohibits any person from buying, selling, bartering, exchanging, giving, receiving, or possessing precious stones unless such person is licensed or holds a permit. A licensed dealer or permit holder is only permitted to deal in precious stones with persons permitted by law to be in possession of precious stones, that is, only with registered miners.[36] Under the act, it is unlawful for a licensed dealer to buy precious stones from illegal sources, including from unlicensed local miners.[37]

Zimbabwe ratified the African Charter on Human and Peoples' Rights in 1986, which, among its many provisions, requires states to protect the right to life (article 4) and property (article 14). Article 5 of the charter states:

Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man, particularly slavery, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited.[38]

Zimbabwe ratified the United Nations International Covenant on Economic, Social and Cultural Rights (ICESCR) whose article 11 states that parties to it accept the right of everyone to an adequate standard of living for himself and his family, including the continuous improvement of living conditions and prohibition of forced eviction.[39] On August 27, 1998, Zimbabwe ratified International Labour Organisation (ILO) Convention Number 29, prohibiting forced or compulsory labor. Furthermore, on December 11, 2000, Zimbabwe ratified the ILO's Worst Forms of Child Labour Convention (1999).[40]