6. Actions in the Administrative Courts

Mozambican justice and the rights of the communities affected by the activities of Jindal Mozambique Minerais, Ltd

6.Actions in the

Administrative Courts

In November 2015, JA submitted two cases to the Administrative Court of the Province of Tete (TAPT), namely:

a) Action to Recognize Legally Protected

Rights

JA submitted this action in defence of environmental law and land rights of communities and families affected by the activities of mining company JINDAL, in the District of Marara, Chirodze, Tete Province. This is case nr. 43/2015/

TAPT.

This process followed its legal procedures and, on the 13 th of June 2016, JA was effectively notified of Judgment nr. 09/TAPT/16, concerning this case nr. 43/2015/TAPT, and by which

TAPT rejected JA’s request on grounds of an alleged illegality of the State and of use of improper procedural means by JA.

However, disagreeing with the decision given in Judgment nr 09/TAPT/16, JA submitted the relevant appeal to the First Section of

Litigation of the Administrative Court, since, in its view, the judgment in question lacked grounds of law and as such, violated the law and the principles of the rule of law and justice. It is clear that, in that judgment, a decision was taken on the basis of presumptions and that, on the one hand, it sought at all costs to accommodate exceptions or previous matters in order not to know the merits of the cause; knowing, on the other hand, exceptions such as those of illegitimacy of the State and use of improper procedural means, lack legal sustainability. The TAPT decided on the basis of arbitrariness and on the basis of a clear abuse of the discretionary powers that the law confers to the judge of the case.

The appeal in question is now processed as case nr 60/2016-1, in the First Section of Litigation of the Administrative Court. However, that court has not yet ruled on the appeal in question, which has already prompted JA to address it calling for a speedy and timely decision on the ground of fundamental rights being at stake.

b) Intimation regarding behaviour

In this urgent procedure, since it was a precautionary measure, JA requested the TAPT to instruct the State and JINDAL to materialize the guarantee of peoples’ land rights, rights to adequate housing and rights to the environment under the law. This is case nr. 39/2015/TAPT, from which resulted Judgment nr. 03/TAPT/16, rejecting JA’s request on the basis of an alleged passive illegitimacy of the State, in the sense that the State did not have any liability to be sued for by this proceeding.

Since the judgment in question is unfounded and unjust because of a clear breach of the law – in particular given the absence of reasons for its decision – JA appealed to the First Section of the Administrative Court and the appeal was identified as Case nr. 25/2016-1.

One of the grounds of the appeal is that, from the point of view of constitutional law, it is the State’s primary responsibility to ensure the protection of the fundamental rights and freedoms of its citizens in accordance with

Jindal - A Classic Example of Corporate Impunity

number 1 of Article 56 of the Constitution of the Republic. It is up to the State to take all necessary measures to ensure fair resettlement under the law.

Final decision on the case

The First Section of the Administrative Court analysed the case and decided in JA’s favour, considering the request of this organization of civil society in defence of the environment and of the social and economic rights of the local communities well-founded, by Judgment 41/2018 of June 12 th . The Court ordered JINDAL and the Government of the Province of Tete to complete the process of resettlement of the community of Cassoca within six months of the date of notification of the judgment or of this decision. In this sense, the First Section of the Administrative Court ruled for the annulment of Judgment nr 03/TAPT/2016, issued by the Administrative Court of the Province of Tete, for violating the law.

It should be noted that the First Section of the Administrative Court stated in that judgment

Mozambican justice and the rights of the communities affected by the activities of Jindal Mozambique Minerais, Ltd

that the resettlement procedure in question has been going on for a long time, consequently contributing to the deterioration of the living conditions and threatening the survival of the populations affected by the mining exploration in the area granted to JINDAL, a situation that is repudiated by this Court, specially given the fact that JINDAL’s resettlement plan was approved in 2013, when it signed commitments with the Government to erect houses and ensure adequate housing for the families affected, but JINDAL has not fulfilled its obligations until now.

The appeal in question was processed as Case nr. 25/2016-1 for a period of two years in the First Section of Litigation of the Administrative Court.

This decision was an important victory for JA and the affected communities in a jurisdictional battle that experienced excessive delays.