The current section presents an overview of the legal status of mercury trade and mercury use in ASGM in the countries in Sub-Saharan Africa. Furthermore, a more detailed description for each of the 8 participating countries is provided.
4.1.1 License systems
License system for mercury trade - Many countries with mercury use in ASGM have a license system for trade with mercury. This concerns e.g. Tanzania, Sen-egal, Burkina Faso, Zimbabwe, Ghana, Kenya and South Africa. In all the countries apart from South Afri-ca, however, a very small part of the total trade of mer-cury is undertaken by companies with a license and registered by the authorities. Detailed data on all import permissions obtained in Ghana, Senegal and Zimba-bwe for the last ten years have been obtained from the authorities in the countries. For Ghana and Senegal it is characteristic that the companies during this period all has obtained one permit only indicating that the import-ing companies only import mercury occasionally and are not further involved in mercury trade. In Senegal, permits for import of mercury have not been issued the last five years. In Burkina Faso, so far no permits have been issues. As the enforcement of the license systems is very difficult for reasons described elsewhere in this report, the importers apparently have no incentives for using time and resources on obtaining permits.
License system for mercury use in ASGM - - In the major ASGM countries, the use of mercury in ASGM is
legal and there is no requirement for a license specifi-cally for the use of mercury. In Tanzania mercury use in ASGM is legal, provided that retorts are used, which according to the available information is very uncom-mon. Some countries distinguish between artisanal mining and small-scale mining. In Burkina Faso and Côte d'Ivoire, mercury is prohibited in artisanal mining (artisanal is defined differently in the two countries) whereas it can legally be used in small-scale mining, provided the miners have the necessary license.
4.1.2 Systems in participating countries
Burkina Faso - In Burkina Faso the law # 036 -2015/
CNT related to Mining Act, article 77 reveals that: "It is prohibited to use explosives, hazardous chemicals, especially cyanide and mercury in activities related to artisanal mining". Mercury is allowed for use in small- scale mining and a license for import or trade of mercu-ry is requires. The import license is issued by the minis-try in charge of mines. According to obtained infor-mation, no licenses has so far been issued.
Côte d'Ivoire - Since 31 March 2014 artisanal mining is divided into two categories:
›
The Artisanal mining for which the license is deliv-ered for a square of 25 Hectares and the shaft may not be deeper than 15 meters.›
The semi industrial or medium-size mine for which the license is delivered for a square of 100hec-tares maximum and the shaft may not be deeper than 30 meters.
For artisanal mines, no mercury or other chemicals are allowed for use. Medium size mines will, however, be allowed to use mercury or cyanide. But for that pur-pose, the company or the mine owner needs to present his management plan for destruction or treatment of wastes generated by chemicals use. This plan needs to be accepted both by ministries in charge of environ-ment and the one in charge of mines. After the license is signed by the ministry of mines, the company will be allowed to buy mercury or chemicals needed for its ac-tivities. In 2016, the ministry of mines started signing licenses for medium size-mines.
DR Congo - The Mining Regulations (‘Réglement Minier’, April 2003) in article 238 (discussing the author-isation required for processing of artisanal mining prod-ucts) stipulates that only organizationshaving authori-sation from the government are allowed to use mercu-ry, cyanide or other dangerous chemicals. If an individ-ual artisanal miner uses one of these products, the government will revoke his mining license. In article 575 of the same Mining Regulations, it states that the use of mercury is strictly forbidden in artisanal gold mining.
However, gravity methods and other methods that do not use chemicals, which are harmful to ecosystems, are allowed.
During field work poor enforcement of these laws has been observed. In the Kamituga district, for example, there is no organization with the license to exploit mer-cury (that can be delivered only by the Ministry of Envi-ronment), but everybody is aware that mercury is being used.
According to the Mining Code, artisanal miners can only sell their production to registered traders holding a
‘carte de négociant’ issued by the Provincial Governor.
These traders may sell to registered buyers who are associated with an export office.
Ghana - Mercury is governed by the Mercury Act, 1989, which grants power to the Ministry of Trade and Industry to regulate mercury. Upon applications and endorsements from the Environmental Protection Agency (EPA) and the Minerals Commission, appli-cants may be granted an import permit with a 6 month validity. In the whole of 2015, one permit was issued for an import of 172.5 kg of mercury, indicating rampant smuggling. Use of mercury for ASGM is legal.
Senegal – The Department of Environment is the insti-tution responsible for carrying out the process of issu-ing authorization for mercury imports. Importers should declare to Customs that they are importing hazardous substances, and apply to the Department of Environ-ment for the authorization. But, to date, the departEnviron-ment has never received an application for mercury import for industrial or commercial purposes. Mercury use for ASGM is not prohibited. The National Commission on Chemicals Control decided not to prohibit mercury in order to be more able to handle the problem and adopt a step by step strategy to reduce its use.
According to Persaud (2015) there is no explicit law against mercury use in the ASGM sector in Senegal, and it is not mentioned in the national mining code, however it is considered de facto illegal by miners and local authorities of Kedougou, the main mining area.
This state of illegality is the result of 1) an article of the Environmental Code, which says that noxious and dan-gerous chemicals that present or may present a danger to humans or the environment, are subject to the con-trol and supervision of relevant departments and 2) national government edict n° 2010-1281, which prohib-its the importation, collection, transportation, recycling, storage, manipulation, treatment or elimination of mer-cury without Ministerial approval. According to Persaud (2015) it is certain that no person or group involved in the ASGM sector has received such approval.
Tanzania - The Industrial and Consumer Chemicals (Management & Control) Act No. 3 of 2003 through the Government Chemist Laboratory Agency (GCLA) regu-lates the production, importation, exportation, transpor-tation, storage and dealing of mercury and other chem-icals in Tanzania. As per Section 9 of the Act, the Chief Government Chemist is the Registrar of Industrial and Consumer Chemical in Mainland Tanzania. In order to ensure control of production, importation, exportation, transportation, storage and dealing of mercury or any other chemical, an application for registration of chemi-cals needs to be made to the Chief Government Chem-ist in the prescribed manner and form, and accompa-nied by prescribed fees as set out in the Act. The regis-tration procedures are clearly set out in Section 11 to 29 of the Act. After an application is submitted, the Registrar will conduct the necessary investigation be-fore approval by the board of the GCLA. As such, every chemical (including mercury) which is imported, distrib-uted, manufactured, transported, sold, or stored shall bear on its container a label with the words "Approved
by the board", Chemical Abstracts Service (CAS) and registration number, batch number and dates of manu-facture, expiry, trade and chemical name, etc. The reg-istration period for a chemical shall be five years with two years for provisional registration. The Mining Act of 2010 allows for the use of mercury subject to the use of retort when burning amalgam.
Uganda - Mercury is not mentioned in recent mining and environment legislations. However, according to the Ugandan authorities new legislation is soon to be published and the revised Environmental Act is likely to present legislation related to mercury.
Zimbabwe - Mercury is not banned in Zimbabwe, but its usage is restricted and discouraged. While mercury import was previously conducted by a number of formal companies dealing with import of mining equipment and
chemicals, in recent years this has been restricted by the Ministry of Environment, which cancelled the li-censes of these companies and has presently only is-sued one license to a company based in Bulawayo.
This company has to submit quarterly reports on im-ported quantities and records of which buyers they sell to. However, the restriction of mercury sale to one company may have resulted in increased smuggling of the substance into Zimbabwe, as buyers have fewer outlets in which they can formally buy mercury. This is reflected in a steep decline in the officially registered import of mercury and increase in the informal import.
4.1.3 Overview of legal status
An overview of the legal status for mercury trade and mercury use in ASGM in countries in Sub-Saharan
Afri-ca is provided in Table 4.1..
Table 4.1 Legal status for mercury trade and mercury use in ASGM
Mercury trade Mercury use in ASGM, as indicated by information source Information source Legal status Legal status Mercury used
for ASGM
ASGM activities Angola
Benin
Botswana Not indicated Not indicated indicated by a ? + Questionnaire
Burkina Faso License system Legal in small-scale mining, Illegal in artisanal
Yes Yes Interviews with stakeholders
Burundi Cabo Verde
Cameroon Not restricted, no license system
- No No Questionnaire
Central African Rep
License system Legal Yes Yes Questionnaire
Chad Not restricted, no license system
Legal, license Yes Yes Questionnaire
Comorros Congo
DR Congo Not restricted License system;
restricted (legisla-tion seems to be contradictory)
Yes Yes Interviews with stakeholders
Cote d'Ivoire License system Legal in small-scale mining, Illegal in artisanal
Yes Yes Interviews with stakeholders
Djibouti Equatorial Guinea Eritrea
Mercury trade Mercury use in ASGM, as indicated by information source Information source Legal status Legal status Mercury used
for ASGM
ASGM activities Ethiopia
Gabon License system, restricted to specific uses
Prohibited Yes Yes Questionnaire
Gambia No regulations No regulations Yes Yes Questionnaire
Ghana License system Legal Yes Yes Interviews with stakeholders
Guinea Guinea-Bissau
Kenya License system Legal Yes Yes Questionnaire
Lesotho License system - No No Questionnaire
Madagascar
Malawi Not indicated - No No Questionnaire
Mali License system Prohibited Yes Yes Questionnaire
Mauritania
Mauritius License system, restricted to specific uses
- No No Questionnaire
Mozambique Namibia Niger
Nigeria Not indicated Legal Yes Yes Eli, 2014
Réunion Rwanda Sao Tome &
Principe
Not restricted, no license system
- No No Questionnaire
Seychelles
Sierra Leone Not restricted, no license system
Legal Yes Yes Questionnaire
Senegal License system Legal Yes Yes Interviews with stakeholders
Somalia South Africa South Sudan Sudan
Swaziland Not restricted, no license system
Legal Yes Yes Questionnaire
Togo Uganda United Rep. of Tanzania
License system Legal, if retorts are used
Yes Yes Interviews with stakeholders
Zambia
Zimbabwe License system Legal, but dis- Yes Yes Interviews with stakeholders
Mercury trade Mercury use in ASGM, as indicated by information source Information source Legal status Legal status Mercury used
for ASGM
ASGM activities couraged