This comes at the heels of a controversy concerning sand mining in Lwera and the proposed sand mining in Lake Victoria.

 

While I have not had a benefit of reading the new policy that seeks to make sand and murram minerals, I find the cabinet decision rushed, and devoid of any trace of stakeholder engagement.

 

The effect of this cabinet decision in absence of additional information on how government wants to proceed with this is that murram and sand will be under the Mineral Act 2003 once the Minister responsible for mineral development gazettes a statutory instrument listing them in line with section 2 of the Act.

 

But can sand and Murram be classified as minerals with the existing legal framework?

 

To begin with, the constitution of Republic of Uganda, 1995 article 244(5) excludes sand and murram from the definition of minerals and provides that;  ‘'For the purposes of this article, "mineral" does not include clay, murram, sand or any stone commonly used for building or similar purposes.'' While this is the case article 244(6) provides that Parliament may regulate the exploitation of any substance excluded from the definition of mineral under this article when exploited for commercial purposes.

 

I have looked at the Draft Mining & Mineral Policy for Uganda 2016 and I hope that it is what the cabinet considered and passed.

 

The policy supposes that substances (clay, murram, sand or any stone commonly used for building or similar purposes) that are excluded from the definition of minerals have greater potential to generate more direct and indirect employment, contribute to poverty reduction, and closely link with the local economy as they provide inputs to domestic construction and industrial sectors. The foregoing finding is generally not in dispute.

 

That said, the draft policy makes a very crucial and correct observation in my view that the current mining legal framework does not provide for the regulation of the herein mentioned substances.

 

 It is my considered opinion that the cabinet pronouncement as relayed to the media that murram and sand are now to be regarded as minerals as part of minerals policy is not backed by law for two reasons . 

 

The constitution expressly excludes these from being defined as minerals. Article 244(6) does not provide an exception but rather opens a window for parliament to regulate exploitation of murram and sand (substances) when used for commercial purposes.

 

This does not in any way transform them into minerals. If the drafters of the constitution intended that these substances when exploited for commercial purposes become minerals they would have expressly stated so.

 

Even then, It is Parliament that has a final call as to any possible regulation of these substances and to that very end Cabinet needs to bring a bill to Parliament detailing  how the exploitation of these substances can be managed for the purposes of optimising fiscal benefits and mitigating considerable health, safety and environmental impacts associated with large scale exploitation of murram and sand .If Government wants to classify these substances as minerals, then in my view  there is need to amend the constitution.

 

The other second issue that arises is if in fact sand and murram are gazetted as minerals, what implications does it have on property rights?

 

It is true that sand and murram deposits can be found in isolated areas, but it is also true that a large chunk of these substances form part and parcel of the land that is currently under agricultural production .Until recently sand and murram exploitation for commercial gain has been on going on a small scale.

 

Declaring them as minerals within the meaning of the Minerals Act will mean that the control of such a resource whether in water or land shall vest in Government and will be subject to acquisition of mineral rights and licenses granted by government.

 

Looking at the history of the land problem in Uganda, I can foresee escalation of land conflicts characterised by high levels of evictions and disruption of agricultural related activities.

 

This is possible because it is only rich people who have capacity to meet tight requirements for licenses necessary to explore and exploit minerals.

 

This move, therefore, poses challenges to property rights .In some parts of Uganda murram for example is part of the soil structure that supports growing of various types of food and cash crops and this aggressive move to open a window for massive exploitation of this substance is a threat to food security and as such cabinet should involve all stakeholders to ensure that this matter is cautiously handled.

 

I strongly believe that the there is a reason why drafters of the constitution on more one occasion refused to consider these substances (Sand and Murram) as minerals.

 

As I have already observed massive exploitation of substances, such as sand and murram, poses a threat to environment and general ecosystem.

 

This is particularly true because most sand deposits for instance on land covered by either wetlands or water bodies .Therefore the desire to exploit this resource should not negate Government's commitment under both national and international law to protect and preserve the environment for today and future generations.

 

Policy makers should strive to balance economic gains and the potential cost to the environment in handling the issue of sand and murram.

 

This issue should open a debate on the need to reform the Mineral act of 2003 and harmonize it with National Environmental Management Act for the purposes of mitigating risks to the environment associated with mining activities.

 

Such policy and legal reform should make information sharing and public participation in all process leading to the exploitation of natural resources mandatory and with a right to ordinary members of society to free administrative review avenues.