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Part A: General Topics | 14. Use of Security Forces

License holders are often required under mining laws to secure the people and goods within and around mining sites, which may be provided by private security, local police forces, national/army police forces or a combination of all three. Historically, the securing of mine sites has sometimes led to human rights abuses and other violations of the law in Africa, which have interrupted site production, endangered workers and local community residents, and in the extreme, generated civil conflict. There are also assessments on the correlation between poor regulation of private security forces and the increase in illegal arms trafficking further contributing to perennial conflict in resource rich countries.

While security is necessary to ensure the safety of people, goods and other features of mine sites, it is critical that the use of security is governed by a detailed legislative framework and is carefully monitored by relevant agencies within a State government. Over 20 African countries have legislation addressing the use and management of private security.[1] At minimum a mining law should make reference to existing, topic-specific legislation as well as additional related legislation.

Overall, provisions addressing the use of security should seek to address the following points either in the mining law and/or in comprehensive related legislation:

  • Process for approval as a private security firms
  • Process of continuous evaluation for approved firms
  • A code of conduct for all security forces including duties compliant with international law (for example prohibitions against sexual exploitation, child labour, inhuman or degrading treatment etc.)
  • Regulations regarding the use of force, the scope, purchase, possession, storage and use of firearms/discharge of weapons and apprehension and detention of persons
  • Clearly elaborated grievance procedures
  • Requirement of incorporation of the code of conduct into company policies
  • Requirement for training (initial and continuous) for all security forces
  • Requirement for clear demarcation of the secured area around the mining site
  • The setting of a reasonable perimeter in which security forces may operate outside the mining site by the government in collaboration with the company
  • In surrounding communities, publication/advertisement of the agreed upon security perimeter
  • Visible demarcation of area to be covered by security forces
  • Notification to all security forces, prior to the commencement of activity, of the limits of the secured perimeter

In addition to the above issues, where private security legislation does not address security of mining sites specifically, provisions in the mining law may note in particular:

In most countries, several regulating authorities will govern the use of force (the ministries dealing with natural resources, private sector/industry, police, army etc.). It is therefore essential that these provisions mention relevant entities by name and highlight the need for collaboration and agreement across the entities, reinforcing effective management of security forces. Finally, provisions should also be in harmony with international best practice, in particular the International Code of Conduct for Private Security Service Providers (ICoC), the Voluntary Principles on Security and Human Rights, as well as general principles of human rights under international law.

14. Example 1:

Article [_] The Use of Security Forces

The employment, management and use of security forces within and around mining sites, for all mining licenses under this [Act][Code][Law], are regulated by the following provisions and [relevant related legislation].

Article [_] Area Secured for Mining Operations

(1) The [Regulating Authorities] may, at the request of a license holder and by notice in national newspapers, establish a controlled area for any reasonable perimeter which is subject to mining operations.

(2) The [Regulating Authorities] may, by notice published in national newspapers, amend or cancel any area declared to be a controlled area or any notice declaring to do so under Article [_].

Article [_] : Modalities of Controlled Areas

A joint agreement between the [Regulating Authorities] will define the terms of movement of people, goods and security forces within the controlled area.

Annotation

Inspired by Tanzania’s mining act (2010) and Mali’s mining code (2012), this example references relevant legislation but also provides broader regulatory provisions which mainly addresses transparent establishment, amendment or cancellation of areas controlled by such security forces so as to give notice of their existence to the public. It also requires a streamlining of oversight by the relevant regulating entities.

14. Example 2:

Article [_] People and assets control bodies

(1) Security and control of people and assets in restricted zones and protection zones, as well as the security of the respective deposits and mining production activity, are carried out by the respective mining rights title holders, using their own means and personnel contracted by the same, in a self-defence system, or by means of contracting specialized security companies, within the terms permitted by the law.

(2) Security and control of people and assets in the areas demarcated for handicraft production are carried out by the State. Whenever the areas are included in the proximity of industrial production zones, security shall be carried out in co-operation with the respective mining rights title holders.

(3) The people and assets security and control powers assigned to the entities mentioned in the previous numbers do not prejudice the generic competency attributed by law to the National Police and security bodies.

Article [_] Duties of the mining rights title holders regarding security

(1) In the exercise of the surveillance, security, and people and assets circulation control duties assigned to them by this Code, the mining rights title holders and security companies must:

a) keep under constant surveillance all zones under their control and monitor the movement of people and assets;

b) prevent unauthorised residence, movement, exercise of economic activities and access by people within the mining activity areas;

c) prevent the performance of any and all unauthorised mineral prospecting, search, recognisance and exploration activities;

d) ensure the protection of deposits and events, opposing any and all activities that infringe their security;

e) ensure the security of people, facilities, assets and services associated with the exercise of mining activities.

2) In the performance of their duties, the entities and persons in charge of security and the control of people and assets movements may carry out the following acts:

a) identify and perform routine searches of the workers and, in a general manner, all people that enter or exit the restricted areas or circulate or are present in further areas under their control, as well as the objects and goods which they carry or are under their responsibility;

b) demand the presentation of access permits, credentials or goods or assets waybills, whenever access to the area legally requires those authorisations;

c) preventively hold the perpetrators of crimes as prescribed in the present Code, whenever caught committing an offence, and immediately deliver them to the competent police authorities, and apprehend the crime instruments carried by them.

3) For the purposes of the provisions of paragraph c) of the previous number, any means of transport, weapons and materials and camping accessories found in the possession of the perpetrators are deemed to constitute crime instruments.

4) Any persons held and the goods apprehended must be immediately delivered to the magistrate of the Public Ministry or the National Police station situated nearest to the detention or apprehension site, in terms of the law.

5) The mining rights title holders must publish internal regulations regarding surveillance, security and control, applicable to the restricted zones, aimed at their workers and all persons authorised by the law or invited to enter those zones.

6) The regulations mentioned in the previous number must be previously submitted to the competent ministry who, following favourable opinion, will submit them for approval by the National Police.

Article [_] Responsibilities of the bodies

The provisions of the previous article do not prejudice the exercise of the duties which, regarding surveillance, security, and control of persons and assets, are assigned to the public security bodies and private security specialist companies in the restricted zones, protection zones and areas demarcated for handicraft exploration, within the terms of the present Code.

Article [_] Prohibition of prosecution

The mining rights title holders or private security agents mentioned in the previous articles may not carry out criminal prosecution proceedings.

Article [_] Obligation to co-operate with authorities

The personnel from the concession companies or private security specialist companies in charge of the control of persons and assets within the strategic minerals production areas must, in the prevention of, and fight against, illegal trafficking of strategic minerals and further illegal activities as prescribed in the present Code, act in close co-operation with the police, prosecution and judiciary authorities.

Article [_] Further considerations

All further provisions regarding licensing and use of security forces may be found in [related legislation].

Annotation

Adapted from Angola’s mining code (2011), this provision addresses the use of security forces in more detail in two key areas: the scope of activities permitted as part of securing mining sites; and the relationship between the licence holder, private security companies, and relevant government agencies.

Some of the key distinctive features of the provision include:

  • The right of the State to demarcate restricted zones for goods and persons around artisanal mining sites.
  • The right of the State, in collaboration with the licence holder, to demarcate security zones where zones are near industrial production areas.
  • The powers given to security forces do not prejudice the competency of the national police and/or other state security agencies with the responsibility for managing national security.
  • The scope of activities licence holders/private security firms may engage in under the context of securing persons and goods around the mining site (for example defining what weapons, materials and other paraphernalia can be considered “instruments of a crime” and which security forces may legally confiscate).
  • The duty of licence holders/private security firms to immediately hand over detained persons and goods to the national police and/or the public prosecutor.
  • The duty of licence holders to publish internal regulations governing surveillance and safety protocol for employees and any other persons authorized to secure restricted areas.
  • The barring of licence holders/private security firms from conducting criminal investigations.
  • The requirement of licence holders/private security firms to collaborate with the police, public prosecutor and judiciary, particularly in combating illegal trafficking of minerals.

Finally, this provision addresses issues of registration, evaluation, training and code of conduct for security forces by referencing the related legislation, in this case Angola’s Law on Private Security Companies (1992).