Across Africa’s gemstone-producing regions, two mining sectors operate side by side under two entirely different relationships to the law. One is formalised — licensed concessions, registered corporate entities, environmental permits, legal counsel on retainer. The other is artisanal and small-scale mining (ASM): hundreds of thousands of miners, often working the same mineral belts, frequently without a formal claim to the ground beneath their feet, without safety protection, and without legal recourse when a dispute arises or a concession is redrawn around them. Artisanal mining rights law in Africa remains, for most of this sector, more theoretical than real.
This is not a marginal detail of Africa’s gemstone economy, it is the foundation of it. Artisanal and small-scale mining accounts for a substantial share of the continent’s coloured-gemstone output: much of the tanzanite coming out of Tanzania, significant volumes of Congolese diamonds and cobalt, and sizeable portions of Zambian emerald and Malagasy sapphire production trace back to artisanal operations rather than industrial ones. Yet the legal frameworks governing mineral rights across most producing countries were built with industrial-scale, capital-intensive extraction in mind. Artisanal miners are, at best, an afterthought written into the margins of legislation designed for someone else.
What “Legal Grey Zone” Actually Means for Small-Scale Miners
“Legal grey zone” is a precise description of the ASM legal framework across most of Africa, not a rhetorical flourish. In practice, it means several overlapping problems.
No formal tenure. In many jurisdictions, artisanal miners work land they have no documented right to — sometimes because licensing processes are prohibitively expensive or bureaucratically inaccessible, sometimes because formal licensing schemes exist on paper but were never extended to the areas where artisanal activity actually happens. A miner without a licence has no standing to defend a claim when a larger operator, a government reallocation, or a rival miner moves in.
Contested and overlapping claims. Where licensing does exist, it frequently overlaps badly with customary land rights or with claims asserted informally by communities long before any formal survey took place. When a dispute arises, the party with the paperwork tends to win, regardless of who was there first or who has worked the ground longest.
No safety protection. Formal mining law typically imposes safety standards, inspection regimes, and employer obligations. None of this reaches artisanal sites operating outside the formal system — meaning the miners doing some of the most physically dangerous work in the sector have the least legal protection when something goes wrong.
No recourse. When an artisanal miner’s claim is disputed, their site is displaced, or they are exploited by a trader further up the chain, there is frequently no accessible legal mechanism to contest it. Formal courts are slow, expensive, and often physically distant from mining communities. The result is a sector where mining rights law technically exists but functionally does not reach the people it is meant to govern.
Mining Rights in Tanzania and the DRC — Two Versions of the Same Gap
Mining rights in Tanzania illustrate the tension between formalisation efforts and their reach. The country has taken more visible steps than many peers to bring artisanal mining particularly in the tanzanite sector into a licensed framework, including efforts to formalise Primary Mining Licences specifically scaled for small-scale operators. But formalisation on paper does not automatically translate into formalisation on the ground. Licensing processes remain costly and administratively demanding relative to what many artisanal miners can absorb, and enforcement capacity to police claims, resolve boundary disputes, and protect licensed small-scale miners from encroachment by larger interests remains uneven.
Mining rights in the Democratic Republic of Congo show a more acute version of the same structural gap. Artisanal mining is a dominant mode of production in significant parts of the country’s mineral sector, and the government has taken steps including designated artisanal mining zones intended to separate small-scale activity from industrial concessions but the scale of informal, undocumented activity still far outpaces the reach of the formal licensing system. Disputes between artisanal miners and industrial concession holders remain common, safety conditions at unregulated sites remain a persistent concern, and the legal tools available to an individual artisanal miner to assert or defend a claim remain thin relative to the resources available to formal operators.
Neither country’s experience suggests a lack of political will to formalise ASM. Both suggest that formalisation frameworks designed without close attention to what artisanal miners can realistically access in cost, geographic reach, and administrative literacy end up formal in name only.
What a Real Artisanal Mining Rights Framework Requires
Fixing this is not simply a matter of writing artisanal miners into existing mining codes as an additional category. A functioning artisanal mining rights framework needs to address the access problem directly:
- Low-cost, geographically accessible licensing registration that doesn’t require a miner to travel to a distant capital or pay fees disproportionate to what small-scale operations earn.
- Clear priority rules for overlapping claims explicit mechanisms for resolving disputes between customary occupation, informal artisanal activity, and formally licensed concessions, rather than leaving the outcome to whoever has better legal representation.
- Cooperative and collective licensing structures allowing artisanal miners to organise into cooperatives that hold licences collectively, share compliance costs, and negotiate from a stronger position than any individual miner could alone.
- Enforceable safety minimums scaled to artisanal operations standards artisanal operations can actually meet, with inspection capacity that can actually reach them.
- Accessible dispute resolution legal recourse that doesn’t require the time, cost, and travel of formal litigation, through community-level tribunals, mining-specific arbitration, or legal aid structured for the sector.
The Kimberley Process Warning
The Kimberley Process’s own history offers an instructive warning as much as a model. Certification regimes built without deliberate attention to who can afford to comply tend to formalise trade in a way that favours whoever already has capital, infrastructure, and administrative capacity, leaving smaller, informal producers further from legitimacy than before the reform, not closer to it. Any push to formalise artisanal gemstone mining law across Africa carries the same risk. Rights frameworks built around what an artisanal miner can actually access are not a lesser version of formalisation. They are the only version of formalisation that reaches the people the law is meant to protect.
Africa Jewellery & Gemstone Law is Fashion Law Institute Africa’s initiative addressing the full legal landscape of Africa’s gemstone and jewellery industry, including mining rights and community protection for artisanal and small-scale miners. [Read our full position paper] or get involved at gemstones@thefashionlawinstitute.org.