Free, Prior and Informed Consent in the Extractive Industries in Southern Africa

An analysis of legislation and their implementation in Malawi, Mozambique, South Africa, Zimbabwe, and Zambia.

The power to give or withhold consent to extractive industry projects is a key tool to help communities defend their right to participate in the development decisions that affect them. For Indigenous Peoples’ the right to free, prior and informed consent (“FPIC”) is recognized under international law, and requires that they be informed about projects that may affect their land, resource and other rights in a timely manner, free of coercion and manipulation, and have the opportunity to approve or reject a project prior to the commencement of all activities. In the African context, recognizing the unique histories of colonialism and post-colonialism across the continent, FPIC is increasingly interpreted as a standard for affected local communities who do not fit the international law definitions of rights holding indigenous entities. On the basis of the research conducted for this study, we argue that African regional human rights law, customary law and indeed various existing statutes and jurisprudence, elevate the standard of consent to a right to be claimed by customary land rights holders.

This research, published by the LRC and Oxfam, sets out to identify major legal and policy gaps in the codification and implementation of FPIC in the legal and policy frameworks of Malawi, Mozambique, South Africa, Zambia and Zimbabwe with particular reference to the mining industries in these countries.