Pickaxes and pitfalls – some hints at the legal challenges of undertaking mineral and infrastructure developments in Africa

The riches of Africa are vast, the opportunities in this underdeveloped continent are endless and there are many people lining up to exploit them. However, there are a few pitfalls in waiting for the unwary, some of their own making and others inherent in the African jurisdictions.

It is an obvious statement that, in order to engage in mining activities or the development, operation and maintenance of infrastructure needed for the successful exploitation of the opportunities presented by Africa, one has to have the rights corresponding to the activities that are to be undertaken. Accordingly, it stands to reason that there will be legislation detailing a formal process for the application for, and the granting of, mineral rights and titles. Despite the important differences between mining legislation on the African continent, the presence of a set framework is common to all of the countries in which we work (such as Namibia, Botswana, Eritrea, Zimbabwe, Mozambique, Lesotho, DRC, Ghana, Zambia, Burundi, Uganda, Liberia, Madagascar and Guinea to name but a few). The same cannot, however, be said in respect of the laws governing the provision of infrastructure such as roads, rail, water and electricity, where they range across the various countries from particularly underdeveloped to extremely sophisticated. Even within one country, the laws range from sophisticated in a sector of specific interest to the country (such as gas, for instance) to underdeveloped or nonexistent in another sector. This dichotomy can exist between neighbouring countries.