not registered yet? Register
Register for free access
Already registered? Login
flag
  • GDP, US$bn: 4.4
  • GDP per capita, US$: 582.0
  • Population, mn: 7.3
  • Inflation, CPI ave: 2.0
  • FX, LCY/US$: 592.9
  • Budget Balance, % of GDP: -2.1
Regulatory Risk Rating
44
0
100
Score: 44
Severe Risk
Togo's legislation reflects a well-educated legal fraternity capable of careful and thoughtful drafting; however its rating has been badly affected by some embedded discretion that just doesn't reflect the general spirit of the law, but which we must record in our diligence with concomitant ratings implications.

Corruption Potential Index

Score: 30
Very High Corruption Potential

Corruption Risk Index

Score: 34
Very High Corruption Risk

Regulatory Risk Rating

Please subscribe below to view this content.

Mining Overview Commentary plus sign

TOGO - MINING REGULATION

GENERAL

Togo, officially the Togolese Republic (République Togolaise), is a country in West Africa, between Benin to the east and Ghana to the west with Burkina Faso to the north and the Gulf of Guinea to the south. The country’s mineral resources include phosphates, limestone, marble, clinker, diamonds, gold, iron ore, manganese, bauxite, gypsum, marble, rutile and zinc. While much of its mineral resources are undeveloped, Togo is among the world’s largest producers of phosphate, and phosphate mining is one of the country’s main industries.

Togo’s economy is heavily dependent on both commercial and subsistence agriculture, and is also reliant on exports. The country has taken steps to implement economic reform measures and attract foreign investment with the assistance of the World Bank and the IMF. Despite these efforts, economic progress has been slow and future development depends on privatisation, government financial transparency, and foreign donor support. Togo joined the Extractive Industries Transparency Initiative (EITI) in order to ease foreign investor fears concerning a lack of transparency in the mining sector, and the country is currently drafting a new mining code to encourage investment.

PRINCIPAL LEGISLATION AND REGULATOR

Togo is currently in the process of drafting a new mining code. An initial draft of this revised code and the relevant implementing regulations were distributed to industry stakeholders in 2014.

Currently, Togo’s principal minerals legislation is the Mining Code (Loi no. 96-004 du 26 février 1996 portant code minier) as amended in 2003 by the Loi no. 2003-012 du 4 octobre 2003, which incorporates the Kimberley Process Certification Scheme to prevent trade in conflict diamonds. Relevant implementing regulations include the EITI Decree (Décret no. 2010-024/PR du 30 mars portant création, attributions, composition, organisation et fonctionnement, des organes de mise en œuvre de l’Initiative pour la Transparence des Industries Extractives) and the Purchase and Sale of Precious and Semi-Precious Minerals Decree (Décret no. 2009-299/PR du 30 décembre 2009 relatif à l’achat et la vente des substances minérales précieuses et semi-précieuses au Togo). The country’s new Investment Code (Loi no. 2012-001 du 20 janvier 2012 portant Code des Investissements en République Togolaise) guarantees equal treatment of domestic and foreign investors, and protects investors against expropriation.

The Togolese mining industry is administered by the Ministry of Energy and Mines, which is responsible for the application of Togo’s mining policy and negotiates investment conventions and partnership agreements and submits them for approval by decree of the Council of Ministers. Within the Ministry of Energy and Mines, the Mines and Geology General Directorate (Direction Générale des Mines et de la Géologie (DGMG)) is comprised of three central directorates (Mining and Geological Research, Mining Development and Control, and Mine Laboratories), and three regional directorates (Maritime, Plateaux and Centrale, and Kara and Savanes). The Director-General of Mines and Geology assures the execution of the Mining Code and is responsible for administrative and technical monitoring of mining operations as well as the commercialisation of mineral substances.

GRANTS AND MINERAL TITLE

Under the Mining Code, mining titles are separate from surface rights, and can be granted to natural persons or legal entities of any nationality possessing the necessary technical and financial capacity to carry out the relevant mining activities. Legally incompetent persons and members, agents or officials of the Togolese government, administration, courts and armed forces are not eligible for mining titles. Legal entities seeking mining titles must be registered with the Togo commercial registry. The government can engage in mining activities directly or in association with any person, and may act through a state-owned enterprise or government organisation.

Mining titles can be extended to include additional mineral substances that are not already subject to another exclusive mining title or an application for such title. Titleholders may also request modification of their titles if the perimeter does not cover the entirety of a deposit, provided the relevant surface area is not a reserved area or already subject to another mining title or mining title application. In addition to mining titles, the code also provides for Treatment and Refinement authorisations. Further, a Marketing/Commercialisation authorisation, valid for two years, is required to conduct commercial activity. This authorisation can be renewed multiple times, and cannot be leased, transferred, assigned, pledged or mortgaged. Mining titleholders do not require this authorisation for the mineral substances for which they have an Exploitation Permit.

The Mining Code provides for the following mining titles: 

  • Prospecting Authorisation: This title is granted by the Director General of Mines and Geology and confers the non-exclusive right to undertake prospecting activities for the relevant materials. The area of the perimeter cannot exceed 1000 km2. The authorisation can be renewed twice for periods of one year, but the titleholder must relinquish half of the surface area with each renewal. This title is not divisible, and cannot be leased, transferred, pledged or mortgaged. 

 

  • Research Permit: This permit, issued by order of the Minister of Mines and Energy, confers the exclusive right to undertake prospecting and exploration activities for the relevant mineral substances within the prescribed perimeter, which cannot exceed 200 km2. The permit is valid for three years and is renewable twice for two-year periods, provided the titleholder has upheld its obligations. The permit is not divisible and cannot be leased, transferred, pledged or mortgaged, but it can be assigned with the prior approval of the Minister of Mines and Energy. The Research Permit holder has priority in applying for an Exploitation Permit for the relevant perimeter, provided that the titleholder has upheld his obligations, demonstrates the existence of a commercially viable deposit, and the relevant authorities accept the development and exploitation plan.

 

  • Exploitation Permit: This title confers the exclusive right to carry out prospecting, research and exploitation for the relevant mineral substances within the specified perimeter. Exploitation Permits are not divisible or leasable, but they can be assigned, transferred, pledged or mortgaged with the prior approval of the Minister of Mines and Energy. Requests for renewal must be accompanied by a new development and mining plan, and are of right provided the titleholder has respected its obligations under the Mining Code and the development plan, and the new development plan is accepted.

 

  • Exploitation Permit – Construction Materials: This permit is issued by order of the Minister of Mines and Energy and is valid for three years. This permit can be renewed several times for periods of one year each.

 

  • Exploitation Permit – Small-Scale: This permit, granted by the Minister of Mines and Energy, applies to investments of less than 300,000,000 CFA francs (approx. 5 million USD (Jan 2016)) and is valid for five years. This permit is renewable for periods of three years. This permit can be converted into a Large-Scale Exploitation Permit if the titleholder demonstrates the existence of a sufficient deposit.

 

  • Exploitation Permit – Large-Scale: This permit, issued by decree of the Council of Ministers, applies to all larger investments and is valid for a period of 20 years. This permit is renewable for periods of ten years.

 

The government is entitled to a free 10% participation in the capital of mining companies (excluding artisanal and construction materials mining permits), and can negotiate a supplementary (paid) participation of up to 20% either for itself or for the Togolese private sector. The relevant rights and obligations are detailed in the Investment Contract or Partnership Agreement. The Mining Code also specifies the mining royalties and other taxes applicable to mining titles. Mining royalties can be modified by decree of the Council of Ministers. The government can also sign Investment Conventions for large-scale investments, which set the relevant economic, financial tax, legal and social terms and conditions attached to the mining activities.

 DEVELOPMENT CONSIDERATIONS

Mining titleholders have priority over surface rights holders, but should not interfere with the activities of the surface rights holder and must compensate the surface rights holder for any loss of use or enjoyment of the property, or any other prejudice suffered as a result of mining operations. The mining titleholder may request the government to confer permanent use of the land necessary for mining operations through expropriation of the land in conformity with applicable law, if the mining titleholder compensates the surface rights holder. Mining titleholders can use water and cut wood necessary for mining operations if they obtain the prior approval of the relevant ministers and provided that such activities do not infringe upon the rights of others. Mining titleholders also have the right to construct and maintain necessary buildings and infrastructure, and can access and use public infrastructure as well as private infrastructure, provided they obtain prior approval from the Minister of Mines and Energy.

Mining titleholders must avoid causing negative environmental impacts, including pollution and damage to flora or fauna. They must conduct their activities in conformity with standard practices and in accordance with their work and investment plan. Mining titleholders must have an environmental compliance certificate, which is granted on the basis of an environmental impact assessment, and mining projects are subject to environmental audits.

To promote local development, mining titleholders must prioritise the hiring of qualified Togolese citizens and submit their employee training/re-training programs to the Director-General of Mines and Geology. The Mining Code further requires the prioritisation of Togolese goods and services suppliers.

EIA PROCESS

See Togo - Environmental Overview Commentary.

Submit A Revision

If you would like to submit a revision or correction to this commentary click here.

Environmental Overview Commentary plus sign

TOGO - ENVIRONMENTAL REGULATION

GENERAL

Togo, officially the Togolese Republic (République Togolaise) is located in West Africa, between Benin to the east and Ghana to the west, with Burkina Faso to the north and the Gulf of Guinea to the south. The country stretches through six geographic regions, and its climate varies from tropical to savanna. Togo’s terrain is generally rolling savanna in the north, with central hills, a southern plateau, and a low coastal plain.

Togo's natural hazards include hot, dry harmattan winds, which can reduce visibility in the north during the winter, and periodic droughts. The country has an abundance of bird species including numerous species of pelican, cormorant, heron, egret, stalk and ibis; Togo is also home to over 190 species of mammal, several of which are considered endangered or vulnerable including the cheetah, red-bellied monkey, African elephants and West-African manatee.

The country heavily relies on both commercial and subsistence agriculture, and its agricultural products include coffee, cocoa, cotton, yams, cassava, corn, beans, rice, millet, sorghum, livestock and fish. Current environmental issues include deforestation attributable to slash-and-burn agriculture and the use of wood for fuel, as well as water and air pollution.

PRINCIPAL LEGISLATION AND REGULATOR

Togo’s principal environmental legislation is the Environment Framework Law (Loi no. 2008-005 portant loi-cadre sur l’environnement) and its implementing regulations, including the National Environment Management Agency Decree (Décret no. 2009-090/PR du 22 avril 2009 portant attributions, organisation et fonctionnement de l’Agence Nationale de Gestion de l’Environnement (ANGE)), the National Environment Fund Decree (Décret no. 2009-091/PR portant attributions, organisation et fonctionnement du Fonds national de l’environnement), and the Environmental Audit Decree (Décret no. 2011-041/PR du 16 mars 2011 fixant les modalités de mise en œuvre de l’audit environnementale). The Environmental Framework Law provides that everyone has the right to a healthy environment and the obligation to protect the environment (Art. 3). The law also provides for, among other things, the principles of sustainable development and polluter pays (Art. 5).

The environmental impact assessment process is detailed in the EIS Decree (Décret 2006-058/PR du juillet 2006 fixant la liste des travaux, activités et documents de planification soumis à étude d’impact sure l’environnement et les principales règles de cette étude) and in ministerial orders, including Order No. 013/MERF portant réglementation de la procédure, de la méthodologie et du contenu des études d’impact sur l’environnement (2006) and Order No. 18/MERF fixant les modalités et les procédures d’information et de participation du public au processus d’étude d’impact sur l’environnement.

The Ministry of Environment and Forestry Resources (MERF, in French) is responsible for administering Togo’s environmental policy. The ministry is divided into several directorates, including the Environment Directorate (DE, in French), and two related agencies/institutions, the National Environment Management Agency (ANGE, in French), and the Forest Development and Exploitation Office (ODEF, in French). The ANGE is responsible for the national system of environmental impact studies and environmental audits.

Article 41 of the Togolese Constitution guarantees the right to a healthy environment and states that the government shall ensure the protection of the environment. Other relevant legislation includes the Forestry Code (Loi no. 2008-09 portant code forestier), which requires that forest clearing or woodcutting for mining or other development projects have the prior authorisation of the minister responsible for forestry resources (Art. 68), and the Water Code (Loi no. 2010 portant code de l’eau). Finally, the Mining Code (Loi no. 96-004 du 26 février 1996 portant code minier as amended by the Loi no. 2003-012 du 4 octobre 2003), Article 35, provides that mining titleholders must avoid harming the environment, including causing land, atmosphere and water pollution, as well as damage or destruction of flora and fauna.

EIA PROCESS

The Environmental Framework Law indicates that activities, projects, programs and plans of development that, by their scale or impact on the environment or human population, may adversely affect the environment must be authorised by the Minister of Environment; authorisation will only be given following an environmental impact study (Art. 38). Mining installations are included on the list of classified installations that are likely to cause nuisance or threaten the environment. The law further requires that companies conduct mining operations in a sustainable manner, take necessary measures to avoid pollution and conserve Togo’s natural resources, and rehabilitate mining sites. Article 129 of the Environmental Framework Law also provides that prior authorisation for prescribed facilities or installations must be obtained on the basis of an environmental impact study, which involves an assessment of the risks and measures to avoid accidents, consultation with the local authorities or, in exceptional cases, the authorities of adjacent communities or prefectures and the relevant ministries, and the relevant local population. Such projects must also have an environmental management plan and an emergency plan.

The phases of the EIA process include the environmental impact study; the review and evaluation of the environmental impact study report; issuance of an environmental compliance certificate; monitoring of the implementation of the environmental management plan; and issuance of a final environmental compliance certificate (quitus environnementale). The project promoter submits a notice of project to the Minister of Environment detailing: the basic project and site information; technical procedures; principal social, economic and environmental impacts; estimated costs; timeline; and other complementary information to begin the procedure to establish the terms of reference. Relevant stakeholders and the local populations must be consulted prior to validation of the terms of reference for all large-scale projects.

There are two forms of EIA studies: a simplified and a detailed EIA study. Within the mining sector, a detailed EIA is required for all mines (except artisanal mines, which require a simplified EIA), as well as exploration activities (recherché minière) (see Decree No. 2006-058, Tableau VII – Secteur Minier). The environmental impact study must include the direct and indirect short-, medium-, and long-term impacts of the project and indicate the proposed measures to avoid, mitigate, or compensate for any negative impacts. As well, the environmental management plan must include appropriate mitigation measures, identification and responsibilities of the relevant actors, the timeline, budget and financing mechanisms, and any monitoring and testing indicators to ensure the implementation of the plan.

The project promoter submits the EIS report to the DE with a request for review and payment of the applicable fees. The DE has seven days to determine the admissibility of the report in accordance with applicable law and the terms of reference. The DE then coordinates the review of the EIS report in concert with the relevant institutions, in addition to on-site document consultation, the public inquiry or public hearing, and the organisation of the report analysis workshop. The result of the DE review is submitted to the MERF within 30 days for examination.

An ad hoc technical evaluation committee (CTE, in French) assists in the review of EIS reports and environmental audits and ensures that environmental interests and the interests of local populations are taken into account throughout the process. Ad hoc committees are composed of representatives from the DE, relevant technical directorates, local populations, NGOs, and EIS specialists. The environmental compliance certificate is delivered on the basis of the conclusions of the ad hoc CTE and the opinion of the DE, and specifies any relevant conditions. It is delivered within 15 days after the receipt of the final EIS report, taking into account the observations from the evaluation process. The environmental compliance certificate can be revoked at any time for failure to follow the environmental management plan after no action is taken after proper notice is delivered.

All projects requiring an in-depth EIE or projects requiring a simple EIE that may cause pollution, nuisance or environmental degradation, also require an environmental audit. Environmental audits allow for the periodic assessment of a project’s environmental management, and can include internal and external audits. The environmental audit process is within the purview of the ANGE, and any violations of the Environmental Audit Decree can lead to a range of sanctions, as requested by the Minister of Environment, ranging from a formal notice to revocation of the environmental compliance certificate or the closure of the enterprise. The MERF issues a quitus environnementale, acknowledging that the project has been carried out in conformity with the environmental management plan, upon receipt of the project promoter’s final report and the report of the DE.

Submit A Revision

If you would like to submit a revision or correction to this commentary click here.