RE-VISITING THE ‘RESOURCE CURSE’: LAW AND MINING GOVERNANCE IN SOUTHERN AFRICAN DEVELOPMENTAL STATES SARA GHEBREMUSSE A Dissertation submitted to the Faculty of Graduate Studies in Partial Fulfillment of the Requirements for the Degree of Doctor of Philosophy Osgoode Hall Law School York University Toronto, Ontario May, 2020 © Sara Ghebremusse, 2020 Abstract Using the case studies of Botswana, South Africa, and Zambia, this dissertation interrogates the applicability of the developmental state paradigm to mining developmentalism in Southern Africa. Since the advent of neoliberal Washington Consensus policies and the rise of the “resource curse” theory beginning in the 1980s, African states have been discouraged from pursuing interventionist policies in their mining sectors. Instead, through the methods of conditionality and transnational norm-creation, many African states were pressured to adopt “good governance” principles that limited their role, and the role for law, in expanding opportunities for mining-led development across the region. As growing consensus challenged the efficacy of neoliberal approaches to mining governance, all three case studies (along with other mining-dependent African countries) introduced measures that increased state intervention in mining. These initiatives fall under three general categories: enhancing local content and participation, developing cross-sectoral linkages, and broader resource nationalism. To investigate the potential conflict that arises between implementing these measures and adhering to good governance norms, this dissertation asks whether the developmental state paradigm—popularized by East Asian states—offers an alternative framework to effectively govern mining-led development. This dissertation is rooted in critical law and development scholarship and seeks to expand disciplinary and methodological boundaries of the developmental state (or “new” developmental state) beyond its current focus on economic growth indicators. Moreover, this dissertation inherently relies on interdisciplinary scholarship to examine its research question, including literature from African studies, political science, development studies and economics. ii By using mining developmentalism in Southern Africa to interrogate orthodox law and development approaches to the developmental state, this dissertation concludes that a rights- based approach to conceptualizing the developmental state—and more specifically, the mining developmental state—could better account for the needs of local populations when states embrace this development model. Accordingly, this dissertation attempts to address these gaps in the mining developmental state framework by evaluating recent state practice in Botswana, South Africa and Zambia, and considering the deleterious effects of extractivism in each country and the ways in which they could be ameliorated using a rights-based approach. iii Acknowledgments Completing this dissertation would not have been possible without the support of several people. I am grateful to my supervisor, Professor Dayna Nadine Scott, for agreeing to supervise this project, and whose patience, support, mentorship and stewardship throughout my time in the doctoral program made it possible to reach the end. I would also like to thank Professors Ruth Buchanan and Obiora Okafor, members of my supervisory committee, for their insights and scholarly contributions throughout the writing process. In addition to my supervisor and committee, I am incredibly appreciative of the administrative support I received throughout my time at Osgoode Hall Law School. In particular, I would like to thank Professor Sonia Lawrence, the Graduate Program Director and Chantel Thompson, the past Graduate Program Assistant, who were both instrumental to my progress at various stages of the program. I am also thankful for financial support I received throughout my doctorate. Initial support was provided by Osgoode Hall Law School through the Harley D. Hallett Graduate Scholarship. Funding through the Government of Ontario’s Ontario Graduate Scholarship and the Centre for International Governance Innovation’s International Law Research Program’s Doctoral Scholarship was also helpful in the early stages of my program. Funding from the Social Sciences and Humanities Research Council through the Joseph-Armand Bombardier Canada Graduate Scholarship was critical in the latter stages of my program. Like all major accomplishments in my life, completing this dissertation and my doctorate would not have been possible without the love and support of my family and close friends. Thanks to both the Ghebremusse and the Dujon families—Daryl, Aday, Aboy, Mom, Dad, Sirak, Sennait, and Johanan—and my dear friends Babil, Luwam, Suha, and Klaudia for their encouragement throughout this process. iv Table of Contents Abstract ii Acknowledgments iv List of Tables viii List of Figures ix 1 Introduction 1 1.1. New directions in Southern Africa’s mining developmentalism 1 1.2. Situating the study: mining developmentalism in post-colonial development 7 1.2.1. Defining and problematizing “development” 7 1.2.2. Mining developmentalism versus extractivism 11 1.3. Framing the study: the developmental state in law and development 13 1.4. Nature of the study: qualitative case studies of Botswana, South Africa, and Zambia 18 1.4.1. Why study Botswana, South Africa, and Zambia? 18 1.4.2. Empirical research using the qualitative case study 20 1.5. Conclusion 23 2 The “Good Governance” Panacea in Mining 24 2.1. Introduction 24 2.2. The historical material conditions of mining in Africa 27 2.2.1. Colonialism 27 2.2.2. Early post-colonial period 29 2.2.3. The rise of the Washington Consensus hegemony 34 2.3. Africa’s mineral wealth: a curse for development, rather than a blessing 40 2.3.1. Economic symptoms of the resource curse 42 2.3.2. Political symptoms of the resource curse 44 2.4. “Good governance”: the solution to Africa’s resource curse 46 2.5. Law and “good governance” in African mining 52 2.5.1. Transnational legal norms in mining governance 53 2.5.2. Reinforcing “good” mining governance: the Resource Governance Index and the Extractive Industries Transparency Initiative 62 2.6. The limits of transnational norm creation and law-making 73 2.6.1. “Governing by measuring” or “what gets measured gets done” 74 2.6.2. The causation presumption 77 2.6.3. Hindering the role for law in the governance of mining developmentalism 78 2.7. Conclusion: Rethinking law and mining governance in Africa 79 v 3 (Re)framing Law and Mining Governance: Incorporating Development and the Developmental State 81 3.1. Introduction 81 3.2. What is law and development? 83 3.2.1. Law and development orthodoxy 84 3.2.2. Law and development heterodoxy: the right to development and the rights-based approach to development 90 3.3. The developmental state 97 3.3.1. Historical examples of the developmental state 98 3.3.2. Defining features of “successful” developmental states 103 3.3.3. Limitations of the developmental state paradigm 107 3.4. Developmental states in Africa? Post-colonial African states and development 109 3.4.1. History of the African state in development 110 3.4.2. Replicability of and rationale for the developmental state in Africa 111 3.5. Conceptualizing the mining developmental state in Southern Africa using a rights-based approach to mining governance 114 3.5.1. Regional frameworks: the Protocol on Mining in the Southern African Development Community and the Africa Mining Vision 115 3.5.2. Mining developmental state institutions 119 3.5.3. Incorporating a rights-based approach to development in the mining developmental state 131 3.6. Conclusion: (Re)framing law and governance for mining-led development in Africa 136 4 Botswana: the Model Mining Developmental State? 139 4.1. Introduction 139 4.2. Mining and development in Botswana from colonialism to the present 142 4.2.1. Britain’s neglected protectorate and its legacy: the colonial and early post-colonial periods 143 4.2.2. Avoiding the “lost decade” and structural adjustment: 1980s–1990s 148 4.2.3. The “good governance” champions: early 2000s to the present 149 4.2.4. Flaws in the “African success story”: Botswana’s development failings 153 4.3. Botswana’s mining developmental state 158 4.3.1. Botswana: an African developmental state 159 4.3.2. Botswana’s mining developmental state institutions 173 4.3.3. Assessing legal functionalities in Botswana’s mining developmental state 181 4.4. Diamonds for development? The absence of a rights-based approach to mining governance and its implications 187 4.5. Conclusion 190 vi 5 Mining Governance in South Africa: For Whose Development? 192 5.1. Introduction 192 5.2. Mining and disparate developmentalism in South Africa 195 5.2.1. Racial inequality and mining: from conquest to the end of apartheid 196 5.2.2. Reorienting development in the new South Africa: 1994 to the present 203 5.3. South Africa’s mining developmental state 214 5.3.1. South Africa: an African developmental state? 215 5.3.2. South Africa’s mining developmental state institutions 232 5.3.3. Assessing legal functionalities in South Africa’s mining developmental state 241 5.4. From economic engine to driving development: realizing a rights-based approach to mining governance in South Africa 245 5.5. Conclusion 249 6 Reversing the Neoliberal Legacy? Mining Developmentalism in Zambia 251 6.1. Introduction 251 6.2. Mining and development in Zambia: from colonialism to the present 254 6.2.1. Settlers and local resistance during the colonial and early post-colonial periods 255 6.2.2. The neoliberal turn and its aftermath: the 1980s and 1990s 263 6.2.3. Zambia’s post-neoliberal recovery and current development challenges 271 6.3. Zambia’s quest for a mining developmental state 277 6.3.1. Zambia’s aspiring developmental state 278 6.3.2. Zambia’s mining developmental state institutions 285 6.3.3. Assessing legal functionalities in Zambia’s mining developmental state 294 6.4. Going beyond revenues: constructing a rights-based approach to mining governance in Zambia 295 6.5.