肯尼亚：监管旨在振兴还是压制矿业？

Kenya: regulation to revitalize or to stifle?

　　介绍 Introduction

　　历史上，肯尼亚矿业在推动国家经济发展中作用有限，其外汇收入主要依靠农业和旅游业。然而，最近发现的钛矿、煤矿、铜矿和铌矿，使政府在深思熟虑后决定将矿业转变为其经济的主要驱动力，以实现“肯尼亚愿景 2030 ”（至 2030年肯尼亚发展成为一个中等收入国家的宏大蓝图）。作为愿景 2030的一部分，肯尼亚矿业监管机关从环境和自然资源部下属的一个仅有少数人员的部门变成了独立的矿业部。这一改变已经使得矿业对 GDP的贡献从上一财年的 0.8%上升到了1.2%。

　　肯尼亚矿业法律的严重滞后促使矿业部启动了根本的改革措施，包括起草新的《矿业法案》，以期推进该行业的现代化和商业化进程。

　　肯尼亚现行的矿业法

Current mining laws in kenya

The supreme law of Kenya is the Constitution. It classifies minerals as natural resources and vests these minerals in the national government under the oversight of the Ministry. Currently mining in Kenya is regulated by the Mining Act (the Mining Act).The granting of a licence to prospect or mine for minerals in Kenya being conditional on the requirements set out in the Mining Act. A prospecting right, once granted by the Commissioner of Mines (the Commissioner), enables the holder of the right to create a prospecting area, apply for an exclusive prospecting licence and peg locations. The Commissioner may grant an exclusive prospecting licence to any person who holds a prospecting right or any company, body of persons or partnership whose agent is the holder of a prospecting right issued to such agent. Upon identification of a mineral potential area, the prospector is required to apply for a license to undertake detailed geological investigations to assess the viability of the mineral deposits. In order to commence mining operations the prospector must be granted a mining lease. The prerequisite for obtaining a mining lease include the preparation of a mine feasibility report, conducting an Environmental Impact Assessment Study and submission of a cadastral survey of the area applied for.

　　随着中国经济的持续增长，其对非洲矿业的兴趣也不断增加。本文旨在帮助中国企业了解肯尼亚和赞比亚的监管者是如何平衡外国投资者的利益和国内需求的，便于制定投资战略和策略。

　　部门改革 :《矿业法案》

Sector overhaul: the Mining Bill

　　新发现的财富应如何在肯尼亚中央政府、县级政府和地方社区中分配。为解决这些问题，该法案提议中央政府获得所有矿业特许权使用费的 70%，县级政府获得 25%，地方社区获得 5%。

The Mining Bill (the Bill) now tabled before the Kenyan Cabinet, intends to repeal the Mining Act, the Trading in Unwrought Precious Metals Act and the Diamond Industry Protection Act.

The Bill seeks to commercialise and modernise mining in Kenya by establishing a National Mining Corporation (the Corporation) which will be in charge of investments in mining on behalf of the national government (currently proposed as a 10% ownership of all mining operations by the Corporation). The mandate of the Corporation is to engage in mineral prospecting and mining, investing on behalf of the national government and acquiring an interest in firms that engage in mining related activities. The Bill explicitly carves out of its purview matters relating to hydrocarbon gases and petroleum.

Once enacted into law, the Bill will establish a Mineral Commodity Exchange mirroring the London Metal Exchange to promote trade in minerals and provide a market for the trade in minerals both for Kenya and the region. The commodity exchange will provide an avenue for trades in future contracts (a sector currently completely unexploited in Kenya) allowing players to hedge against the risk of world prices.

　　对“紧张”行业的积极展望

A positive outlook for a nervous sector

The Kenyan Constitution stipulates that minerals be exploited in a manner that is equitable, efficient, productive and sustainable and that the proceeds from the exploitation of natural resources benefit the government and local communities.

In October 2012, the then Minister for Environment and Mineral Resources promulgated The Mining (Local Equity Participation) Regulations, 2012 which sought to introduce a mandatory local equity participation of 35% by Kenyans. The regulations were arguably passed by the then Minister ultra vires his powers and were poorly drafted, failing to define either "local equity" or "mineral right" and seeming to attempt to apply retroactively. In June 2013 the current Cabinet Secretary for mining (the Cabinet Secretary) intimated that he would repeal the local ownership requirements upon the completion of the proposed new Mining Bill.

　　肯尼亚矿业正吸引着来自世界各地的跨国公司投资者。

Mining in Kenya is attracting investors from multi-national companies all around the world. An important Mining Business and Investment Conference 2013 held on 17 October 2013 sought to market Kenya's mining potential and was billed as the premier Mining event in Kenya organised by the Ministry and the Kenya Chamber of Mines to showcase the exploration and mining opportunities in the region.

But the recent discoveries have led to questions as to how the new found wealth will be split between the central government, county government and local communities. In response the Bill proposes that the central government takes 70%, county governments 25% and local communities 5% of all mining royalties.

Against this relatively positive backdrop the Cabinet Secretary cancelled various mining licenses issued between January 14th and May 15th, 2013 (being the interim period between the outgoing government and the appointment of the new government) over concerns in the manner in which such licenses were issued and created a taskforce to review all licenses granted since January 2003. The Cabinet Secretary further increased royalties from between 0.01% and 5% to between 2% and 12% depending on the mineral together with significant increases in drilling fees. The charges bring Kenya closer in line with other African nations, but despite the Deputy President's assurances that the Government is "not at war" with the mining industry, the cancellations and royalty hikes have left investors jittery.

　　赞比亚：“凯撒的归凯撒”—影响矿业的新税收

ZAMBIA: "render unto caesar" -new tax affecting the mining industry

　　介绍 Introduction

　　2012年，为从国家矿产资源中获得更多的税收，赞比亚政府通过颁布 2012年《矿山和矿产开发法案（修正案）》（ Mines Act 2012）和 2012年《财产转让税法案（修正案）》（ PTT Act 2012），分别实施了《矿业法案》（Mines Act）的修正案和《财产转让税法案》（ PTT Act）。这两部修正案提出了转让矿产权利或其中的利益时支付财产转让税（ Property Transfer Tax（PTT））的要求。

　　背景 Background

In Zambia, the rights of prospecting for mining and disposing of minerals are acquired and held under or in accordance with the Mines Act. It is prohibited for a person to prospect for minerals or carry on mining operations or mineral processing operations except under the authority of a mining right or mineral processing licence granted under this Act.

It has been common practice in Zambia for investors in the mining industry to invest funds in existing mining rights in order to have access to areas considered to have high mineral yields but already subject to existing grants of mining rights under the Mines Act. This investment is then translated into an 'earn in interest' in the mining right subject to which the investment was made.

An interest in a mining right is not defined under the Mines Act. However, it may include a participation interest (such as earn in interests) which may be a percentage of the profits resulting from the activities associated to a mining right. However, the term interest would also generally apply to any right, claim, title, or legal share in a mining right.

Therefore, in order to have the opportunity to participate in the seemingly mineral rich areas of Zambia, many mining investors have devised joint venture arrangements where, in return for their investment, they have 'earned in interests' in the existing mining rights that have been granted for that area.

The acquisition of interests such as "earn in interests" was previously only subject to the procedural requirements contained in the relevant provisions of the Mines and Minerals Development Act, No. 7 of 2008. However, due to a change in attitude towards the practice, the law governing the acquisition of existing mining rights (i.e. including 'earn in interests') has been subjected to amendments in order to ensure that the Government benefits from such transactions as well as to quell the practice of speculators acquiring mining rights solely for the purpose of later transferring such interests for a profit.

　　谁需要纳税？

Who will the taxes apply to?

The following mining rights are granted under the Mines Act and are affected by the introduction of the Mines Act 2012:

A prospecting licence;

A large-scale mining licence;

A large-scale gemstone licence;

A prospecting permit; and

A small-scale mining licence.

The Mines Act 2012 amends section 104 of the Mines Act by providing for a new section 104 A which provides as follows:

“104A. (1) A person who intends to transfer, assign, encumber or otherwise deal with a mining right conferred under sections twenty-one, thirty-two, forty-three, fifty-one, sixty-one or seventy-one shall apply to the Zambia Revenue Authority for a tax clearance certificate.

(2) Subject to the other provisions of this Act, the Minister, Director of Mines, or Director of Geological Survey, as applicable, shall, upon the production of a valid tax clearance certificate relating to the transfer, assignment, encumbrance or other dealing in a mining right by the mining right holder, approve the application for the transfer, assignment or encumbrance of, or other dealing in, the mining right.”

Under the Mines Act, an interest in the mining right includes:

a controlling interest in respect of direct or indirect control of the mining right holder via the ownership of fifty percent or more of the shares in such licence holder; or

he power to appoint or prevent the appointment of half or more than half of the numbers of Directors in the holder of a mining right.

However, in the case of a prospecting licence, the Mines Act recognizes another class of interest which may capture participating interests in the mining right under a prospecting licence.

The effect of this change in the law is that a party transferring a mining right or a controlling interest therein, and in the case of a prospecting licence a participating interest, is required to obtain a tax clearance certificate from the Zambia Revenue Authority (ZRA) relating to the transfer or assignment of the mining right or an interest therein.

Where the acquisition of a controlling interest in a shareholder of a company that holds a mining license or mineral processing license in Zambia is happening offshore and it does not affect the shareholders of the licence holder, it could be argued that there is no transfer of an interest in a mining right in Zambia as there is no legal precedent on how the Mines Act would be interpreted in relation to indirect shareholders.

In the past, the Ministry of Mines, Energy and Water Development (the Ministry of Mines) has only been concerned with what happens to license holders and their shareholders in Zambia. However the word "interest" is capable of a wider interpretation and to avoid any uncertainty where the transaction involves the transfer of a controlling interest in a mining license, it is preferable to get the consent for such a transaction from the Ministry of Mines as this will determine whether PTT is payable on the transaction.

　　法律的这一变化的效果是就转让矿权或其中的控制权益，并就探矿许可证，如涉及参与权益的转让，转让方需要就转让矿权或其中的权益获得赞比亚税务局（ ZAR）的完税凭证。

Under joint venture agreements providing for the acquisition of participating interests in prospecting licences, it can be argued that the transfer of the "interest" only occurs on the date of the first "earn-in" by the non-licence holder. Therefore, it can be argued that it is only after the first "earn in" by the non-licence holder that the obligations to pay PTT arises.

Unfortunately, there is no clear indication in the legislation confirming this and so as the law stands, the requirement to pay for tax may be read to arise at any time after the agreement to allow the transfer of any interest in the prospecting licence. However, this may create a saving on the PTT as the value of the mining right is less before money has been spent on the prospecting.

Accordingly, due to the uncertainty in the law, it can be opined that the transfer of the "interest" can only occur after a non-licence holder has earned its "interest" by expending money.

　　转让矿权的税收

Tax payable on transfer of mining rights

The PTT Act 2012 extends the definition of "property" under the PTT Act to include "a mining right issued under the Mines Act or an interest therein". Therefore PTT is now payable on the transfer of a mining right, a controlling interest or any interest therein.

The rate of tax on transfer of a mining right or an interest in the mining right shall be ten percent of the realised value of the mining right. The realised value of a mining right is the actual price of the mining right or interest at the time of the transfer of the mining right or interest or as determined by the Commissioner-General of the ZRA, whichever is higher. It is not yet clear how the ZRA will ascertain the realised value of a mining right.

The relevant government authority shall not approve the transfer, assignment, encumbrance or other dealing with a mining right or interest therein if the transferor fails to pay the tax due in respect of the transfer, assignment, encumbrance or other dealing with a mining right or interest therein under the PTT Act 2012.

 　　结论 Conclusion

　　转让矿权权益税收的引进为赞比亚共和国提供了新的财政收入来源。并且，财产转让税的引进可以有效防止针对矿权投机行为。

　　随着修正案的生效，提示有意在赞比亚投资的各方，应确保其在赞比亚境外持股情况的变化不会因矿权许可证持有人的控制权变化而触发缴纳财产转让税的义务。

　　最后，投资者转让探矿权许可证中的参与权益时，可能需要确保其就何时需要支付财产转让税获得相关政府部门的安慰函。

 　　【作者介绍】

Dominic Rebelo

　　非洲Anjarwalla& Khanna律师事务所合伙人。在公司并购、资本市场、能源和自然资源以及环境法领域经验丰富。为企业提供包括股权收购、私有化和企业上市等法律服务。协助众多外国能源投资者在肯尼亚设立运营实体。毕业于伦敦政治经济学院，获得哲学与经济学学士和法学学士学位，肯尼亚最高法院的出庭律师。被“钱伯斯全球”和“国际金融法律评论 1000”法律评级机构评为领先律师。

MutuleMusembe

　　非洲Musa Dudhia& Co机构律师，参与过公司顾问服务、并购、税法、劳动法和矿业法等领域的众多业务。获赞比亚大学法学学士学位。