SAND MINING AND ENVIRONMENTAL LAW IN TANZANIA

Mwandi Isaya: MU/Mbeya Campus College: Research paper Chapter Two 2014; Analysis of Laws on Environmental Rights Protections in Sand Mining industry in Tanzania. [email protected]

TANZANIA ENVIRONMENTAL LAW: AN OVERVIEW OF CONCEPTS AND LEGALPROVISIONS FOR ENVIRONMENTAL PROTECTION AGAINST SAND MINING

AND QUARRYING EFFECTS


2.0 Introduction

This chapter intends to explain much on the concept of sand mining andquarrying activities and how they contributes to environmental degradation, theaspect of a clean, safety and healthy environment which need to be protectedagainst sand mining and quarrying activities for achievement of sustainabledevelopment. The chapter also explains briefly on legal provisions andinstitutional machineries responsible for protection of environmental rightsagainst human harms in Tanzania. The environmental law principles that arerelevant to environmental degradation by sand mining process which includesthe precautionary principle, the polluter pay principle, sustainable developmentprinciple and integrated approach are also elaborated herein.

2.1.0 Environmental management and Protection

Environmental protection refers to the process which involves set of policies andprocedures to prevent and control all environmental activities which in one wayor another can harm environment1 In management and protection ofenvironment, every country has its own policy and procedures which aresupposed to adhere with various international environmental principles. Thestate is a primary institution responsible for monitoring utilization of naturalresources by its own citizen hence become the main regulator of environmentalprotection in exploitation of natural resources, using its organ to legislateenvironmental legislations, adjudicate environmental disputes and enforce thelegislated laws and regulation. Nongovernmental organization and privateindividual has the duties and responsibility of protection environment byvoluntarily formulating groups.

1 www.onlinedictionary/definition/environmental protection Browsed on Thursday 02/01/2014 3.38 PM


2.2.0 Environmental law principles relating to sand mining and quarryingactivities

These include environmental principles that have been enshrining in variousinternational and national laws with objective of protecting environment fromhuman harm. The following are the principles which are relevant with the rightto clean, safe and healthy environment

2.2.1 Precautionary principles

This principle states that in order to protect environment, the precautionaryapproach shall be widely applied by the state according to the capabilities.Where there are threats of serious or irreversible damage, lack of full scientificcertainty shall not be used as a reason for postponing cost-effective measures toprevent environmental degradation2. This principles allows the policy maker tomake discretionary decision in situations where there is a possibility of humanharm from taking a particular course even thought there is no extensive scientificproof of the matter. In protecting right to clean healthy and safe environmentthe state organ responsible for protection of environment under this principlethey are required to take all precautionary measures where there is any likehood of environmental harm to be caused by any human activities even thoughthere is no any scientific proof.

2.2.2 Polluter Pay Principles

The ‘polluter pays principle’ refers to a device of internalizing environmentalcosts by making those who benefit from the environmentally damaging activitybear the costs of the damage. The polluter pays principle is implementedthrough charging polluters for the right to pollute. This may be achieved througha variety of means, including taxes and fees on licenses. This is alsoenvironmental principle recognized under the Rio declaration which requires the

2 Principle 15 of the Rio Declaration


polluter to compensate for the damage and injury caused by his action orconduct. The principle requires party responsible for producing contaminantmaterial to be the cost. The polluter pays’ taxes are mainly intended to punishthe polluter without necessarily using the monies raised for environmentalprotection activities. The other method which is increasingly being used toimplement the polluter pays principle is the legal imposition of compensatorydamages3

The principle is of much important in regulation of human activities like sandmining and quarrying activities from harming environment since it containsenvironmental reparation features which hereto have seldom been included inpollution control legislation. In the near future, compensation and reparation, inthe form of environmental clean-up are features likely to replace penal sanctionsas the main characteristics of environmental law. This, in turn, will dramaticallyincrease the cost of polluting the environment. The increase of pollution tax, asan application of economic tools made the polluter to pay more attention onadopting new techniques to decrease the pollutant discharge.

2.2.3 Principle of Sustainable development

One of the greatest challenges facing Tanzania and the rest of the world is toimprove the quality of human life for both the present and future generationsthrough sustainable development. These refer to the development that considerspreservation of environment so as we can meet the need of the futuregeneration. The principle of sustainability of the environment encompasses thenotion of inter-generational equity, that is, the harm to the environment affectsthe present as well as future generations, what popularly known toenvironmental activist as “the tragedy of the commons” Hence, the public needs

3 Twinomugisha K. (2007) Some Reflections on Judicial Protection of the Right to a Clean and

Healthy Environment in Uganda Law, Environment and Development Journal LEAD Vol. 3/3/2007,

available at http://www.lead-journal.org/content/07244.pdf pg p. 244

http://www.lead-journal.org/content/07244.pdf


to be properly and broadly informed regarding any threats to the environment,whether globally, regionally, nationally or locally4. The principle requiresexploitation of mineral resources in the country to ensure the sustainabledevelopment by protecting environment in the mining areas and ensurereduction of environmental pollution caused by the mining activities. WorldCommission on Environment and Development (the Brundtland Commission)convened by the United Nations General Assembly in 1983 in response to globalenvironmental concerns, describes sustainable development as, ‘the developmentthat meets the needs of the present without compromising the ability of futuregenerations to meet their own needs’.5 According to the NEAP, the key policyinstruments and strategies for achieving sustainable development areenvironmental impact assessment, environmental legislation, economicinstruments, environmental indicators and standards, and public participation.6

The Ministry of Energy and Mineral of Tanzania has the strategic plan of 2011 to2016 under supervision of the Environmental Management Unit (EMU) toensuring mineral and energy resources are used for sustainable development byimproving health, safety and environmental management in mining operationsand management of environmental pollution in mining activities particularly thesmall scale mining.7

2.2.4 Integrated Approach

4 Glazewski, J. (2000) Environmental Law in South Africa. Durban: Butterworth Publishers pg 11

5 Ibid Glazewski pg 14-15

6 Mwalyosi, R Impact Assessment and the Mining Industry: Perspectives from Tanzania pg 13 (Paper

presented in a conference organized by International Association for Impact Assessment, Vancouver,

Canada, April 2004).

7 Ministry of Energy and Minerals of Tanzania Strategic Plan of 2011/2012-2015/2016, Strategic Objective

D pg 12


This principle as enunciated under the Rio Declaration8, that in order to achievesustainable development, environmental protection shall constitute an integralpart of the development process and cannot be considered in isolation to it isapplies in combating environmental degradation caused by many factors miningand sand mining being one of them. In the framework of an integratedapproach which is consistent with Agenda 21, with the view of contributing to theachievement of sustainable development.

2.3.0 Concepts of Sand Mining, quarrying and Environmental Protection

There are different concepts in the environmental management and sand miningconcepts which are used in this paper. For better understanding they arehereunder explained

2.3.1 Environmental Rights

It is difficult to have a holistic definition of environmental rights, but it has beensuggested that they are the rights to a clean and healthy environment, the rightto protect the environment and the right to information and participate indecision-making9. The human contribution to environmental degradation haslong been recognized by international environmental law. Thus, environmentaljustice and international human rights movements are increasingly applying arights-based strategy to confront global environmental devastation,environmental racism, and to protect ecological habitats and the planet forfuture generations. The right to a healthy environment requires a healthy humanhabitat, including clean water, air and soil, free from toxins or hazards thatthreaten human health. All these constitute the immediate milieu of theindividual.10

8 Principle 4

9 gbgm-umc.org/umw/education/glossary.html accessed on 22nd December 2013

10 Op cit Twinomugisha K pg 249


2.3.2 Right to clean healthy and safe environment

Under Section 4 of Environmental Management Act provides for an inclusivemeaning of the right to clean safe and healthy environment as every personliving in Tanzania shall have the right to clean, safe and healthy environment.The right to clean healthy and safe environment shall include the right of accessby any citizen to the various public element or segment of the environment forrecreational educational, healthy spiritual, cultural and economic purposes.

In Ugandan case of Auto Garage vs Motokov11, the court affirmed that for theright to a clean and healthy environment, meaning that everyone has the right toan environment that is not harmful to health or wellbeing. As one of theenvironmental right it has been recognized in constitutions of various countriesfor example Article 39 of the Uganda Constitution of 199512 asserts that theParliament shall, by law, provides for measures intended to protect and preservethe environment from abuse, pollution and degradation; to manage theenvironment for sustainable development; and to promote environmentalawareness. Under Article 42 of Kenya Constitution, the right to a clean andhealthy environment is underscored as it is provided that “every person has theright to a clean and healthy environment, which includes the right to have theenvironment protected for the benefit of present and future generations throughlegislative and other measures; and to have obligations relating to theenvironment fulfilled.”13The Ghana Constitution assigns responsibility to thegovernment and citizens to take appropriate measures to protect and safeguardthe environment for the current and future generations.14 The South Africa

11 No 3 1971 EA 514

12 The Constitution of Uganda 1995, Amended by the Constitution (Amendment) Act, Act 11/2005 and the

Constitution (Amendment) (No.2) Act, 21/2005.

13 The Constitution of Republic of Kenya of 2010

14 The Constitution of Republic of Ghana of 1992


Constitution also states that, ‘everyone has the right to an environment that isnot harmful to their health or well-being; and to have the environment protected,for the benefit of present and future generations, through reasonable legislativeand other measures that prevent pollution and ecological degradation; promoteconservation; and secure ecologically sustainable development and use ofnatural resources while promoting justifiable economic and socialdevelopment’.15

2.3.3 Right to clean healthy and safe environment in Tanzania before 2004

Before enactment of EMA, environmental rights, protection and management ofthe environments were not well addressed in sectoral pieces of legislation.Environmental management issues were only addressed through sector-basedapproach and various pieces of legislation were made to regulate managementof forests16, wildlife17, water resources18, minerals and land19. Though all theseare part and parcel of environment, Tanzania lacked express and elaborateprovisions to provide for environmental rights, principles and sustainableenvironmental management. In this regard, therefore, there was a pertinentneed to enact a legislation which could provide for these.

Litigation of environmental cases before 2004, have contributed immensely inthe development of the environmental jurisprudence in Tanzania. Tanzania hada small number of environmental law experts for quite a long time. This isbecause environmental law was not taught at the University as a core or optionalsubject but the few environmental law experts who were in Tanzania before year15 Article 24 of South Africa Constitution of 1997

16The Forest Act of 2002

17 The Wildlife Conservation Act, Cap. 283

18 Water Utilization (Control and Regulation) Act, Cap. 331, Waterworks Act, Cap. 272,

19 The Mining Act, Cap. 123 and The Land Act, Cap. 113 and Village Land Act, Cap. 114


2000 studied environmental law abroad. It is in early years of 2000, whenenvironmental law started being taught as an optional subject at the Universitylevel in Tanzania. As a result of this, the Court of Appeal, High Court and allSubordinate courts did not have judges and judicial officers who had skills onenvironmental law. This affected litigation of environmental cases. It is worth tonote that, apart from the landmark environmental cases litigated in the 199120

and 200021 there is no substantial case law developed on environmental law inTanzania.

The enactment of EMA borrowed a leaf from international instruments anddecisions which were made by the international community. It also took onboard provisions provided in the Regional environmental instruments. BecauseEMA is a framework law, and basing on the fact that other sectoral legislationregulating environmental related sectors were in place, the drafters of thelegislation set a provision in the legislation which makes EMA to be a superiorlaw on environmental matters in case there is inconsistency or conflict with theprovisions of other pieces of legislation.22

2.3.4 Concepts of Sand Mining

Sand mining is a practice that is used to extract sand, gravels and stones mainlythrough an open pit. This is mined from beaches, inland dunes and river beds. Itis often used in manufacturing as an abrasive, and it is used to make concrete.23

20 Festo Balegele and 794 Others v. Dar es Salaam City Council, High Court of Tanzania at Dar es Salaam,

Miscellaneous Civil Cause, No. 90 of 1991.

21 Felix Joseph Mavika v. Dar es Salaam City Commission, High Court of Tanzania at Dar es Salaam,

Miscellaneous Civil Case No. 316 of 2000.

22 Massawe, S. Environmental Rights, Protection and Management in Tanzania Justification for their

Inclusion in New Constitution Paper Review on October 2012 by LEAT and Policy Forum p 10

23Feyereisn W,(2013) Industrial Silica Sand Mining and Its Potential Public Health Risks. Paper Presented on Focus World Conference Minnesota (USA) May 2013. Available at:


As communities grow, construction requires less wood and more concrete,leading to a demand for low-cost sand. Sand mining is also used for theextraction of minerals such as rutile, ilminite and zircon which contain theindustrially useful elements titanium and zirconium. These minerals typicallyoccur combined with ordinary sand, which is dug up, the valuable mineralsbeing separated in water by virtue of their different densities, and the remainingordinary sand re-deposited24

2.3.5 Sand Mining operation and environmental consideration in Tanzania

In Tanzania sand mining and quarrying activities operates as the categories ofmining activities which is centrally on the extraction of building materials. Thisprocess of extraction building materials from the environment is conductedthrough obtaining of approval mineral licensing from responsible authorityworking under the umbrella of ministry of energy and minerals. There are fourcategories of mineral licenses in Tanzania and those are the primary mininglicense, prospecting mining license, mining license and the special mininglicense25

Primary mining license

Primary mining license is provided by the Zonal Mining Office of the particularzone to the persons whose investment capital is below US dollar 100,000. Oneamong the crucial condition in application for primary mining is that theprimary mining license is subject to the regulations including the regulationsapplicable to safety and the protection of the environment26. In case of theextraction of building materials such as clay, sand, stones and gravels primary

www.freedoniagroup.com/FocusDetails.aspx? DocumentId=606640. Accessed April 15th 2013. Pg 4

24 Ibid Fevereisn pg 7

25 Section 7 of Mining Act No. 14 of 2010

26 Ibid Section 54 & 55(3)

http://www.freedoniagroup.com/


mining license is the most effective and has been always issued by the Ministry ofEnergy and Minerals of Tanzania through the Zone Mining Offices and for theside of Coast Region the Eastern Zone Mining Office is issuing license. This is dueto the nature of investors are not with such much capital hence falls within thecategories of Primary Mining License. Practice shows that indigenous ofTanzania with little income have engaged in this categories and most of the sandmining industry of Tanzania is of this category.

Prospecting mining license

This is the mineral license offered for those investors who wants to commencemineral explorations in the country. The prospecting mining license is issued bythe commissioner after consultation with the National Advisory Board to groupof mineral such as metallic minerals, energy minerals, gemstones and buildingmaterials to those areas which have been designated by the minister of mineralsto be allowed to mining those areas.27

Mining license

This is the mining license for a large scale mining in Tanzania. The mining licenseis issued to the mining investment with capital worth of US dollar 100,000 to USDollar 100,000,000 after making an application to the minister under prescribedforms. One among obligations of the mining holder is to prepare environmentalplan and the environmental management schemes for maintenance of safetyand health in mining areas.

Special Mining license

This is the license for the largest scale of mining in the county in terms ofinvestment and nature of mining. Special mining license is issued to the mininginvestment with capital over US Dollar 100 million and it is commonly known asthe large scale mining after having make an application to the minister. Under

27 Ibid Section 28


section 41(4) (e) of the Mining Act require in applicant for the special mininglicense require to present environmental certificates as stipulated by theenvironmental management Act.

Therefore the extraction of building materials such as sand, stones and gravellicense depend on the nature of miner investment in extraction of the saidmaterial. An individual will be given license depending on the categories of theinvestment he or she made on the mining activities and on both licensing thesand miner is under obligation to protect environment.

2.3.6 Effects of Sand Mining on Environment

Sand mining is being undertaken within the Dar es Salaam City in areas notdesignated for such activities. This phenomenon has created conflicts betweenresidents and city authorities and ultimately undermined principles of urbanplanning. It has created big holes which essentially affect the aesthetic featuresof the area. This activity has potentially exacerbated soil erosion and resultedinto a loss of productive land.28

Sand mining is a direct cause of erosion, and also impacts the local wildlife. Forexample, sea turtles depend on sandy beaches for their nesting, and sandmining has led to the near extinction of gharials (a species of crocodiles).Removal of physical coastal barriers such as dunes leads to flooding ofbeachside communities, and the destruction of pictures beachescauses tourism to dissipate. Sand mining is regulated by law in many places, butis still often done illegally. In summary the sand mining and quarrying activitieshas the following impact on the environment

Loss of biodiversity

28 Kamukala G (2013) The City of Dar es Salaam Striving to Resolve Environmental Problems. A report

presented to The PASCAL International Exchanges (PIE) pg 9


As the microorganism is one of biological component of environment some ofthem live in the earth crust, the process of removing sand lead to thedisappearance of some species in due to the destruction of their habitants. Forinstance disturbance of underwater and coastal sand causes turbidity in thewater, which is harmful for such organisms as corals that need sunlight. It alsodestroys fisheries, causing problems for people who rely on fishing for theirlivelihoods.29

Decrease of tourism and potential site destruction

Tourism is one of the strongest linkages of coastal ecology to measurableproductivity aspects of coastal resources. Degradation of the quality of thecoastal environment is reflected in reduced environmental quality and itsproductivity for sustainable tourism. Unlike biodiversity changes that need deepresearch to determine, tourism impacts from environmental degradation can bemeasures in terms of reduced revenues or loss of potential revenues. Equally,increasing intensity of tourist related development is often itself a cause of beachquality changes and a source of wastewater affecting the coastal environment.30

In many mining sites on the coast of Tanzania particularly Tanga, Pwani andDares Salaam are remote, but fabulously beautiful. While maintaining a healthyecosystem, hotel complexes could readily be constructed within the still-extensivecoastal sand dunes of Tanzania. The seasonal dry, sunny weather, warm coastalocean with excellent surfing and swimming opportunities and proximity toexisting international airports in Dares Salaam, conducive environment andmarine tourism represent an extraordinary combination of conditions totourism. Sand mining has turned these sites into ugly moonscapes that no

29 Ibid Kamukala pg 10

30 Hemalatha C, Chandrakanth M & Nagaraj N. Effect of Sand Mining on Groundwater Depletion in

Karnataka: South West India. Submitted for oral presentation at the Vienna International Conference of

the Central Board of Irrigation and Power, 15th -18th Feb 2005, Bangalore. Pg 3


tourist would want to visit. With the sand gone, the beaches are too hard forlounging on. They are even difficult to walk on.31

Destruction of infrastructure

Sand mining sites that are conducted illegally along the people residents havebeen the causes of destroy infrastructure such as roads, railways. Some of theminers used to extract sand along the road which left some holes and gulliesthat affect the roads. For example Kunduchi Sand Mining site at Dares Salamwas closed after realizing that it was approach along the road.

Destruction of the near shore marine ecosystem and increased shorelineerosion rates

Removal of beach sand can also impact the near shore distribution of sand onthe shore face in shallow water. Anytime the nature of the near shore bottomsediment is changed, there is a corollary ecosystem change. Many organisms areadapted to a particular substrate. Removing sand from the beach and fromadjacent dunes will increase the shoreline erosion rate for the impactedshoreline even as rising sea level increases the threat of long-term coastalerosion. In addition, neighboring, unmined shorelines may also see an increasein erosion as the shoreline reaches a new equilibrium thus creation of lunarlandscape end result It is hard to imagine how ugly some of the mined sites inDares salaam are.32

Geological landscape changes and its impacts

Large beaches and large coastal dunes can provide excellent protection fromstorms, tsunamis, and other large wave events. Beach mining increases thevulnerability of all coastal infrastructure and ecosystems that were once

31 Nosiphiwo, I. Coastal Erosion in Tanzania and Sustainable Development posted on Thursday ,

2010-November -4th at 16:04 at www.24 tanzania .daresalam illegal sand mining.com

32 Ibid Nosiphiwo, I.

http://www.24tanzania.daresalam/


protected. The changes of geological landscape that caused by the creation ofdepressions and gullies which during the rain seasons lead to flooding and somedepression are occupied by water that lead to the production of mosquitoeshence influenced the rapid spread of malaria. In Dare s salaam Tanzania there isargument that one among the reasons for having flood during rainy seasons isaccording to the rampant sand mining that was conducted from years of 1980 topresent.33

The impacts of river sand mining on environment

Since mining and quarrying activities is conducted in the river have lead toseveral impact on the rivers including lowered water table, impacts onagriculture and drinking water supply, collapse of river banks, lowering of riverbed and changes to flow regime, damage to river related and roadinfrastructure, influence soil erosion at the river bank and river bed. It stimulateto biological diversity.34

2.4.0 Legal provision for Regulation for Environmental Degradation by SandMining

There are various laws and international instruments contains principle whichare effectively control environmental management and protection considerationin the mining activities especially the sand mining and quarrying activities. Thislaws and treaty has established institution and framework for the environmentalprotection

2.4.1 International Multilateral Treaty.

33 Ibid Kamukala, G.pg 12

34Ratnayake, R. (2006) Unregulated / Illicit River Sand Mining in Sri Lanka- Impact of Awareness

Campaign and Legal Recourse


These are international treaties such as convention, declaration, agreements andprotocols signed and acceded by various states with the intention of facilitateenvironmental protection globally. Some are regional institution which bindingamong the member states as the trans-boundary treaties.

The Stockhorm Declaration

This was the first International United Nation Conference on the HumanEnvironment (UNCHE) held in Stockham in 1972 attended by 114 states with theagenda of not only to protect fauna and flora but to deal with the oil pollutionand nuclear test impact on the atmosphere. In the preamble of declaration it hasbeen reached in history when we must shape our actions through the world withthe more products care of their consequences.35

Conversion on Biological Diversity

The Convention was opened for signature at the Earth Summit in Rio de Janeiroon 5 June 1992 and entered into force on 29th December 1993. The conventionrecognized for the first time in international law that the conservation ofbiological diversity is "a common concern of humankind" and is an integral partof the development process. The agreement covers all ecosystems, species, andgenetic resources. It links traditional conservation efforts to the economic goal ofusing biological resources sustainably. It sets principles for the fair and equitablesharing of the benefits arising from the use of genetic resources, notably thosedestined for commercial use. The convention reminds decision-makers thatnatural resources are not infinite and sets out a philosophy of sustainabledevelopment use. While past conservation efforts were aimed at protectingparticular species and habitats, the Convention recognizes that ecosystems,species and genes must be used for the benefit of humans.36 However, this

35 Hoskins Richard (2001) Summary of the International Conference on the Security of Material in

Stockholm, Sweden. A Presentation on IAEA Bulletin March 14 2001

36 United Nation Convention on Biological Diversity of 5th June 1992 commonly known as Earth Summit.


should be done in a way and at a rate that does not lead to the long-term declineof biological diversity.

East African Countries Protocol on Environmental and Natural ResourcesManagement of 2006

This protocol is an instrument which acts as the successor of Memorandum ofUnderstanding in Environmental Management Cooperation formed by the EastAfrica Community Countries EAC in 1998. Under Article 18 of the Protocolrequires the partner states in management of mineral resources to develop andharmonize common policies, laws and strategies for access to and exploitationof mineral resources for the socio-economic development of the Community. Theprotocol also needs to develop common measures for ensuring that mineralresources are exploited in an environmentally sound manner and ensurestrategies and programmers’ for restoration and rehabilitation of mines andquarries. Again the protocol insists on the partner state under Article 15 inmanagement of coastal and marine resources to ensure protection andconservation of environment.37

2.4.2 Laws of Tanzania in environmental protection

Tanzania has environmental laws responsible for the protection andenvironmental conservation which including policy instruments and legislations.Most of the laws and policies are formulated in compliance with theinternational environmental instruments in which the country has becomesignatory and adopted. There are policies formulated by the government ofUnited Republic of Tanzania provided for the guidance and objective of thegovernment in ensuring protection of environment.

National Environmental Policy of 1997 (NEP)

37 East Africa Countries Protocol on Environment and Natural Resources Management April 2006


The policy objective from an environmental perspective is the prevention,reduction, control and elimination of damage and minimization of the riskthereof from the generation, management, transportation, handling anddisposal of hazardous wastes, other wastes and emissions. Much of the miningdone in Tanzania is artisanal and large concentration of these small scale minersare found in gold-bearing areas. Large scale mining is also on the increase. Theproblem here is the use of mercury which pollutes water resources and isdangerous to health on account of its adverse effects on the human nervoussystem. The policy statements provides various policies shall be undertaken tominimize pollution arising from the mining sector overall project cycle of miningincluding reclamation and restoration of land after use shall be adequatelymanaged to minimize adverse environmental impacts, preventive and clean upmeasures for accidents shall be formulated and implemented.

The National Environmental Policy identifies six major problems, which requireurgent attention. These are loss of wildlife habitats and biodiversity,deforestation, land degradation, deterioration of aquatic systems, lack ofaccessible, good quality water, and environmental pollution. Further, theGovernment of Tanzania admits in this policy, that the country needs to adoptenvironmentally sustainable natural resource management practices in order toensure that long term sustainable economic growth is achieved38 It can thereforebe concluded that, the country's long-term economic growth is dependentamong other factors, upon its coherent natural resource management39. Theoverall objectives of the National Environmental Policy are, therefore, to ensuresustainable and equitable use of resources without degrading the environmentor risking health or safety; to prevent and control degradation of land, water,

38 (NEP: 1997).

39 Mnisawa E & Shauri V (2001) Review of the Decentralization Process and it's Impact on

Environmental and Natural Resources Management in Tanzania. A paper presented in Lawyers

Environmental Action Team (LEAT) p 6


vegetation, and air which constitute the essential life support systems; toconserve and enhance natural and man-made heritage, including the biologicaldiversity of the unique ecosystems of Tanzania; to improve the condition andproductivity of degraded areas including rural and urban settlements in orderthat all Tanzanians may live in safe, productive and aesthetically pleasingsurroundings; to raise public awareness; to promote individual and community40

Mineral Policy of Tanzania 2009

The Mineral Policy of 2009 is formulated as a result of an evaluation conductedduring the ten years of implementation of the Mineral Policy of 1997. TheMineral Policy of 2009 aims among other to strengthening environmentalmanagement in mining sector by ensure the Government will remain as theregulator and facilitator of the mineral sector; promoter of private sectorinvestment in the mineral sector; and will participate strategically in miningprojects.41 The policy states that Tanzania is endowed with variety mineralincluding beach sands and building materials such as stone aggregates andsand.42 The Mineral policy has an objective of promoting safety and maintainshygiene conditions and protects the environment in mining areas43

The Mineral policy of Tanzania insist on provision of environmentalmanagement, health and safety measures as a cross cutting issue by emphasizethe government to strengthen the institutional capacity in monitoring andenforcement of laws and regulations on safety and occupational health,environmental protection and management in mining areas, collaborate withstakeholders, provide education to miner of all categories and requires mining

40 Ibid Pallangyo M

41 Policy Statement 1 of Mineral Policy of Tanzania statement, introduction pg 6

42 Ibid policy statement 2

43 Ibid policy statement 4


companies to set aside fund for environmental rehabilitation and mines closureobligations.

National land Policy, 1995

The national land policy was formulated by the government in 1995 with thepurpose undergoing land reforms to suit with the existing economic and socialdevelopment of the country. One of the objectives of Land Policy is to protectland resources from degradation for sustainable development. To achieve thisobjective the land policy has outlined policy statements which are intended toguide human practices in order to ensure sustainable utilization of landresources and avoid land degradation. The policy statements address thefollowing areas: protection of sensitive areas; village land demarcation;unplanned settlements; protection of public open spaces and other urban landfor public use; urban agriculture; village land use planning; conflict in land uses;overlapping land use areas (pastoralism and wildlife); coastline land use; andprotection of fragile and sensitive lands. 44 The better land ownership systems,planning settlement and utilization meant to left land as the important naturalresources from environment protected hence right to clean healthy and safetyenvironment is safeguarded too.

Environmental Management Act of 2004

In regulating environmental degradation caused by human activities includingsand mining adverse affect on environment in Tanzania the EnvironmentalManagement Act of 2004 EMA which is successor the National Environment Actof 1983 is very useful. The Environmental Management Act was passed by theNational Assembly in 2004, and in the beginning of 2005 the President assentedto the Act. The Act repealed and replaced the National Environment ManagementCouncil Act, 1983. EMA provide for the adequate techniques and principles

44 National report for the United Nations Conference on Sustainable Development,Rio+20,the Vice

President’s office, April 2012 at pg. 12


which are relevant in protection of environment against any mining activitiesadverse impact. The legal and institutional frameworks of management are wellstipulated in the act.

This is a framework Act (a comprehensive umbrella) in the legislation governingenvironmental aspects in Tanzania. The Act includes provisions for; legal andinstitutional framework for sustainable management of environment; an outlineprinciples for management, impact and risk assessments, prevention and controlof pollution, waste management, environmental quality standards, publicparticipation, compliance and enforcement and the basis for implementation ofinternational instruments on environment.45

Under Section 81 provides for Environmental Impact Assessment EIA for anyeconomic activities before taking place must be assessed to ensure that the saidactivities does not affecting the environment. Quarrying and mining activities arelisted in the Schedules of the Act as the economic activities which anenvironmental impact assessment must be complied before lunch of the miningproject.

Mining Act of 2010

The Mining act of 2010 is a successor of Mining Act of 1998 regulating all miningactivities in Tanzania. The act vests control of the entire mineral to the UnitedRepublic of Tanzania and includes various categories of mineral among otherbuilding materials. Under Section 3 of the act building material has been definedinclusively as kind of mineral which includes all forms of rock, stones, gravel,sand, clay, soils, volcanic ash or cinder, scoria, pumice, or other minerals beingused for the construction of buildings, roads, dams, aerodromes, or similarworks but does not include gypsum, limestone being burned for the productionof lime, or material used for the manufacture of cement. The individual has themineral right which they acquire through being granted mineral license by the

45 Ibid Pallangyo, M. Pg 34


specified authority. Under Section 16 the minister have the power to designatean areas for primary mining license.

Under Section 111(1)(c) requires the mining company to ensure insurance andindemnities for the purpose of any accidental damages that may be caused tothe environmental by the mining activities.

Tanzania Investment Act

The Tanzania Investment Act, No. 7 of 1997 is a legislation which solely providesmore favorable condition for investors in Tanzania. The Tanzania investment Actestablishes the Tanzanian Investment Centre (TIC) which formally was known asInvestment Promotion Centre IPC as an agency of movement in the investment ofany kind in Tanzania; TIC has the function of initiating and supporting measuresthat will enhance the investment climate in the country under supervision of theminister responsible. TIC enforcement mechanism is to notify the investors aboutthe need to comply with laws of the country, for instance the need to conduct EIAor any other procedure carrying any investments in the country.

The act stipulates that one of the functions of the TIC is to liaison withappropriate agencies to ensure investment projects use environmentally soundtechnologies and restore, preserve, and protect the environment. Under thisimportant step, TIC vets unscrupulous investors who may want to maximizeprofits at the expense of the environment. The act gives the investors generousincentives in form of tax relief and concessions tax rates.

Land Acts


Under this category the relevant principal legislations include, The Land Act46, theVillage land Act47, The land Acquisition Act48, The land Registration Act49. TheNational Land Use Planning Commission Act50, The regulation of land TenureAct51. The entire land act in Tanzania provides for the relevant provisions inmanagement of land including the process of acquisition, occupation,ownership, disposition and the matter of land utility and registration. Since theland acts in Tanzania has the aim of facilitate smooth utilization of land hassome need of protecting the land against any human degradation. For instancethe land in Tanzania is under granted right of occupancy in which is subject tocertain condition including using it for the specific purpose of allocation asstipulated in the certificate of right of occupancy. The owner of the land is underrestriction of utilizing the land for the specific purpose hence cannot conduct anyactivities in contrary even the process of sand mining and quarrying activitieswill be against the condition under granted right of occupancy hence subject torevocation.

Subsidiary legislation

Apart from principle legislation there are different environmental subsidiarylegislation enacted by the institution responsible for protection of environmentincluding the ministry responsible for management of environment protectionagainst human harmful activities in Tanzania. In the aspects of extraction ofbuilding material there are subsidiary legislation enacted by the ministry and

46 (Cap 113 R.E.2002)

47 (Cap 114 R.E.2002)

48 (Cap 118 R.E 2002)

49(Cap 334 R.E 2002)

50 (Cap 116 R.E 2002)

51 (Cap 267 R.E 2002)


other by the local government. Some examples of this subsidiary legislationinclude the following:

The Mining (Environmental Management and Protection) Regulations, 1999

The subsidiary legislation, the Mining (Environment Management and Protection)Regulations, 1999 (the Regulations) describe in details the principles outlined insections 38(5) and 64 of the Act. For instance, the government process ofapproving a mining project involves project screening, scoping, EIA and EMPevaluation by experts from the National Environment Management Council(NEMC), the Vice Presidents Office – Division of Environment, the Ministry ofWater, the Ministry of Natural Resources and Tourism, the Ministry of Lands andHuman Settlement and the Ministry of Energy and Minerals (Minerals Division).Furthermore, representations from the relevant Regional Administration, LocalGovernment Authorities and the public are sought and considered during theapproval process.

Precedent

The role of precedent in protection of environment and ensure effectivemanagement cannot be undermined due to the notable dictum that has alreadypassed by the judiciary. In Tanzania particularly the judiciary has successfuldevelop the principle of locus standi which is has been currently being widen tocover the varieties of litigation brought by the other parties who has not evensuffer damage but bring the suits for the public interest. In the case of FestoBaregele V Daresalam City Council the court held that the right to cleanhealthy and safety environment any person for the public interest can bring asuit to demand the enforcement of that right by the administrative authoritywhen infringed.52 The Case of Felix Joseph Navika & 4 Others Vs Dares SalaamCity Council & Ilala Municipal Authority53 the court when on overruled the

52 (1991) Misc Civl No. 90 HC of Tz at Dar es Salaam.

53 (2000) Civl Case No. 316


preliminary objection raised by Attorney General that the litigants in the suitshad no locus standi on the case that involved the public interest litigation andonly the Attorney general has the right to bring an action on behalf of the public.The court overruled the objection citing the case of Joseph Kessy v DaressalamCity Council. In LHRC, LEAT, NOLA vs Attorney General54 where there court ofAppeal of Tanzania enlarge the principle locus standi for public interest to covereven the nongovernmental organization in enforcement of the bill of right andother human right when infringed in the court of law. This mean thatenvironmental group, NGO’s can bring an environmental suits when the right toclean, healthy environment has been infringed.

2.5.0 Institutional Framework for Environmental Protection

The part below gives brief summary of the analysis of governmental institutionaland department responsible for environmental management and protection inthe country

Ministry responsible for environmental management

In Tanzania mandate for environment management rests with the Vicepresident’s Office in which case the minister responsible for environment is thehead of all environmental matters and charged with the function of formulationof policy guidelines necessary for the promotion, protection and sustainablemanagement of environment within the country.

Environmental Director

The director for Environmental is working below the minister and he is appointedby the president. The director has the following functions as assigned by theenvironmental management act. To coordinating various environmentmanagement activities being undertaken by other agencies and promoteintegration of environmental considerations into development policies, plan and

54 (2005) Miscl Appl Civl No. 77 of CAT


programmes, strategies, projects and undertake strategic environmentalassessment with a view to ensure proper management and rational utilization ofenvironment resources on sustainable. To advice the government on legislativeand other measures for management or implementation of relevantinternational agreement in the field of environment, and on whether thegovernment should be a member or withdraw its membership from thoseinternational agreement. Monitor and assess activities, being carried out byrelevant agencies in order to ensure that the environment is not degraded bysuch activities, environmental objectives are adhered to and to considerprecautionary measures on impeding environmental emergency. Prepare areport on the state of environment in Tanzania and to coordinate issues relatingto articulation of environmental aspect of other sector policies and NationalEnvironmental Policy.

National Environmental Advisory Committee

This is the committee composed by members whose experiences reflect variousfield of environment in public, Environmental Lawyers, NGOs and other Civilsociety. They are function as an advisor of the minister on environmentalmatters. Other role of the committee is body therefore include to examine anymatter which may be referred to it by minister or any sector ministry relating tothe protection and management of environment, to advice the minster on anymatter on in connection with restocking and limitation of stock Another is toadvice the minster on the matter watering, grazing, and moving stock and tomake recommendations to the minister where there is degradation of theenvironment. The Committee has to perform such other environmental advisoryservices to the minister as are necessary.

National Environmental Management Council

The National Environmental Management council NEMC is a body establishedwith the objective to undertake enforcement, compliance, review and monitoring


of environmental Impact assessment and in that regard it shall be facilitatingpublic participation in environmental decision making, exercise generalsupervision and coordination over all matters relating to the environmentassigned to the council under the EMA 2004 or any other written laws.

In collaboration with relevant sector ministries the council shall be doing thefollowings: Carry out environmental audit and survey which will assist in propermanagement and conservation of the environment, undertake and coordinateresearch, investigation and surveys in the field of environment, collect anddisseminate information about the findings of such research, investigation orsurvey; review and recommend for approval of EIAs, identify project andprograms or types of projects and programs for which environmentalmonitoring must be conducted, enforce and ensure compliance of nationalenvironmental quality standards

Ministerial sector base

In each ministry there is established a sector environmental section which isresponsible for ensuring compliance with the Act, responsibility of ensuring thatall environmental matters contained in other written laws falling under thesector ministry are implemented and submit the report to the Director ofenvironment and to liaise with the Director of Environment and the Council onmatters involving environment and all matters with respect to which cooperationor shared responsibility is desirable55 The sector environmental sections arerequired among other things to advise on, and in collaboration other bodiesimplement the policies of the Government on the protection and management ofthe environment.

coordinate the activities related to environment within the ministry, to ensurethat the environmental concerns are integrated into the ministry ordepartmental development planning and project implementation in a way which

55Ibid Section 30(a-c)


protects the environment and to collaborate with other institutions or agencies,evaluate existing and proposed policies and legislation and recommendmeasures to ensure that policies and legislation take adequate account of effectson the environment.

Regional Secretariat

The Regional Secretariat is composed of a Regional Environmental ManagementExpert (REME) charged with the responsibility to advise the Local GovernmentAuthorities of that particular administrative region on matters relating toimplementation and enforcement of the Act the Regional EnvironmentalManagement Expert links the region with the Director of Environment56

Local government Authority

Under the local government authorities there are three categories of institutionsresponsible for environmental management and protection consideration suchas following:

The City, Municipal and District Council

These include the Environmental Management Officer who works within thejurisdiction of which he or she is designated at city, municipal or district level.They are sole responsible for management of environment by ensureenforcement of EMA, advice the environmental management committee in hisjurisdiction, prepare periodic report concerned about the state of environmentalin their locality, promote environmental awareness in the areas they belong andthey have to review by-laws on environmental management and on sectorspecific activities related to the environment. They also have the duty of report tothe Director General of NEMC concerning implementation of EMA 2004 andperforming any other functions as the local government directs them.57

56 Section 34 of Act no 20 of 2004

57 Ibid Section 36(3)


Townships, wards, Village and Kitongoji

This includes the public officer designated for each administrative area oftownship, ward, village, Mtaa and Kiitongoji who shall be responsible tocoordinate all functions and activities geared towards the protection ofenvironment within the area he or she has been designated.58

Standing Environmental Committees

These are committees vested with status of Environmental ManagementCommittees. These committees are; Standing Committees on Urban Planningand Standing Committees on Economic Affairs, Works and Environment. Thepowers of these committees include: - Initiate inquiries and investigations aboutany allegation related to the environment and the implementation or violation ofthe provisions of the Act; resolve conflict related to environment amongindividuals, companies, NGOs and Government institutions.59

Require provision of information or explanation about any matter related toenvironment; Examine and inspect premises, street, vehicles, aircraft or anyother place or article believed to be pollutant; Initiate proceedings of civil orcriminal nature against any person, company, department or institution thatrefuses or fails to comply with any directive issued by any such committee60. TheAct designates these Committees with the status of: City EnvironmentalManagement Committee Municipal Environmental Management Committee61.

2.6.0 Conclusive Remark

58 Ibid Section 40

59Ibid section 37 (1)

60 Ibid section 41(a-f)

61 Section 37 (2) of Act no 20,2004


Environmental degradation by sand mining and quarrying activities in coastareas has contributed by the rapid increases of population in the city and townparticularly the Dar es Salaam. The Eastern Zone Mining office together with theMinistry of energy and minerals has designated various areas for extraction ofbuilding materials and issuing primary mining licenses for the individualintended to invest on the sand mining with the consideration of protection ofenvironment for sustainability meanwhile the Ministry of prime minister officeenvironmental and other institution as stipulated by the EnvironmentalManagement Act has the firm responsibility of ensuring environmentalprotection.

SAND MINING AND ENVIRONMENTAL LAW IN TANZANIA

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