Malawi: Protecting rural women from negative impacts of the extractive industries

The Southern Africa Litigation Centre is assisting the Kanyika community based in the Mzimba District of Malawi to recover damages and compensation for loss and damage they have incurred due to extensive mining and prospecting operations conducted by Globe Metals and Mining, an African-focused resources company currently undertaking its Kanyika Niobium Project in Malawi under the authority of the Mzimba District Commissioner.

Background

The Kanyika Community—consisting of 1042 individuals—and their forefathers have occupied and used the customary land at the Kanyika area since time immemorial, growing seasonal and perennial crops, rearing animals, residing within the area and maintaining cemeteries and burial sites to which they attach great sentimental, religious and cultural value. An essential river they almost absolutely relied on for their water supply also passed through the area.

In 2006, Globe Metals and Mining commenced with its Kanyika Niobium Project (“Project”) in Malawi to prospect, mine, and process minerals in the Kanyika area, claiming it had been granted a mineral right to do so by the Government of Malawi and was acting with the permission of the Mzimba District Commissioner. The Kanyika community was not consulted by either Globe Metals and Mining or the Government of Malawi before operations in the area began.

In 2011, Globe Metals and Mining entered into negotiations and consultations for the resettlement of the Kanyika community and the payment of compensation for any loss and damage occasioned to the community due to the implementation of the Project. The following undertakings were allegedly made:

1. that Globe Metals and Mining would resettle all members of the Kanyika community adversely affected by their operations by the year 2012 (the ‘resettlement undertaking’) and compensate any loss and damage suffered as a result of the Project (the ‘compensation undertaking’); and
2. that the Mzimba District Commissioner would assume responsibility for ensuring that the Kanyika community were compensated and relocated from the Kanyika area by 2012.

In response to the District Commissioner and Globe Metals and Mining’s allegedly promised undertaking, the Kanyika community significantly laid off their land use, ceased long-term activities such as growing and maintaining perennial crops and ceased maintaining their homes marked for demolition by Globe Metals and Mining.

In the meantime, Globe Metals and Mining, with the authorisation, approval, and complete knowledge of the Mzimba District Commissioner, continued with the Project for over five years without paying any compensation to the Kanyika community and without effecting their resettlement from the Kanyika area, contrary to what had been promised.

Despite Global Metals and Mining’s failure to fulfil its undertakings to the Kanyika community, the Mzimba District Commissioner never withdrew the permit it granted Global Metals and Mining or even took any practical step to compel it to honour its undertakings. As a result of the unabated mining and prospecting activities of Global Metals and Mining, the community significantly suffered the following loss and damage:

1. They have been led to gross poverty, deprivation and perpetual food insecurity;
2. Their houses are severely dilapidated and will require substantial investment to be restored to a habitable state;
3. The drying up of the river which passed through the area and on which the community heavily relied as a source of water for domestic, agricultural and other purposes;
4. The prospecting, mining, extraction and processing activities have directly impacted croplands in the Kanyika Area;
5. The soil in the area has been rendered less fertile and less suitable for agricultural production;
6. Several burial grounds, which are of cultural, religious and sentimental value to the Kanyika community, have been negatively impacted;
7. Several heritage sites in the area, which are of both community and national importance, have been adversely affected;
8. Globe Metals & Mining has dug large trenches in the Kanyika area, extracting huge tonnages of earth, substantially reducing the area’s aesthetic appeal and rendering large portions unsuitable for habitation and agricultural production.

in the High Court

After a series of demands from Globe Metals & Mining and lobbying for the Mzimba District Commissioner to take action on the issue, which never yielded any result, the Kanyika community commenced legal proceedings in the High Court on 28 August 2017, asking the Court for constitutional and common law damages and compensation. In response, Globe Metals & Mining and the Attorney General representing the government, including the Mzimba District Commissioner, denied all claims levelled against them in their responding court papers on 11 September 2017.

On 16 August 2018, the Kanyika community and Global Metals and Mining agreed to mediation proceedings to resolve the dispute. However, in December 2019, the parties failed to reach an appropriate settlement, resulting in the mediation proceedings’ termination. Subsequently, Global Metals Mining, together with local partners and representatives of the local chiefs, met with the Kanyika community in the absence of their lawyers in January 2022 and agreed to compensate the community by 2023, after which the community is to relocate from the area.

Given these developments, SALC will keep a close eye on the situation and continue to support the community to ensure they are fully, fairly and adequately compensated or otherwise commence legal proceedings if this is not the case.

Court documents 

Writ of Summons and Statement of Claim

1st Defendant’s Defence

2nd Defendant’s Defence