and on guarantees against abuse of human rights and labour standards
throughout the operation cycle of the extractive industries. Such legislation
and policies should mandate the establishment or legal empowerment of
existing institutions to monitor and ensure compliance with fiscal or other
transparency initiatives, and provide them with the necessary authority and
resources to enforce compliance. Such legislation on applicable standards
should further ensure the application of human rights and relevant safety
and environmental standards for protecting individuals and communities
involved in and dependent on artisanal mining with particular attention to
the rights of children, women, indigenous populations/communities, people
with disabilities, migrant workers and other vulnerable groups. Measures
should be put in place to combat corruption linked to Government entities
in charge of ensuring the implementation of the relevant laws. States should
adopt legislation and put in place measures particularly on restriction of
extraction in conflict-affected areas and criminal liability for involvement of
companies in human rights abuses in conflict situations.
46. In terms of Article 21 of the African Charter, the duty to protect entails that
the State adopts comprehensive and beneficial fiscal legislation covering the
revenue regime by which extractive industries are bound including license
fees, profits taxes, royalties, dividends, bonuses, customs duties and capital
gains tax.22 Such legislation should impose legal obligations on companies
in extractive industries to declare profits derived from their operations and
reporting obligations on compliance with all applicable tax obligations, and
in this regard should provide for the way in which as well as the frequency
with which such declarations should be made. Such legislation should also
provide for rules and inspection/investigation avenues that ensure strict
application of tax breaks and duty free privileges and address the exploitation
of any lacuna that exist in the monetary regulatory regimes including
the tax breaks and duty free privileges. Apart from tax and incentives
regimes, such legislation regulating the fiscal framework should also take
account of fiscal transparency of the whole processes of management
of extractive concessions, for instance in cases of joint-ventures. In
addition, States should develop and implement robust and efficient tax
collection systems in order to address the challenge of illicit financial flow.
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