1. This deal was somewhat unavoidable given the threats made by Glencore to shut down some of the operations under its care. This would have led to loss of about 13,000 jobs. Given the context of high unemployment levels in the country, the shut down would have had serious economic, social and political consequences.

2. ZCCM IH showed determination to go ahead with this transaction despite strong voices not to proceed. This somewhat demonstrates the company and government itself have better information on the whole deal than the rest of us. We only hope that the country will not come back ten years from now questioning the wisdom of the transaction/negotiation team and advisors. I should add that I saw great leadership over the whole Mopani issue in past one year.

3. The transaction has happened at a time the price of copper is over US$8,000/ tonnes, implying we are in for good returns should this price be sustained for longer periods or even exceed the projected US$10,000/tonne.

4. This is a significant step on the part of government to own strategic assets and the transaction reduces the existing suspicions around transfer pricing as well as private (undeclared) foreign currency remittances from which government would have gained in foreign exchange reserves. The mine under total government ownership will now directly improve the country’s fiscal position albeit in the long term.

5. The real winner in the transaction is Glencore. They wrapped up the deal well. On one hand, this is a leveraged or debt financed deal from which Glencore will start earning interest after a period of time and will also have other gains accruing to it on the principle amount (being US$1.5 billion it has borrowed from itself!) Second, until all outstanding amounts are repaid, Glencore will have control of copper sales through a purchase offtake and this presumed to be at a fixed price of copper. The arrangement is beneficial to government given the huge fluctuations in the copper price.

6. Loosely and to bring the above point home, I liken the deal to an ‘Outgrower Scheme’ where farmers are financed through fertiliser, seed, technical advice and chemicals to grow tobacco. The financier is also the buyer at a fixed price. Both teams are winning but the financier/buyer is the absolute winner and that’s why this whole deal works well for Glencore.

7. It also means Zambia has acquired a new debt worth about US$1.5 billion (take away other costs) for the ownership of Mopani Copper Mines. The consolation is that we will not pay this money from tax revenue. The asset is projected to finance itself. What worries me though is that it all depends on what happens to copper production and the price during the life of this deal. The comparison is an American mortgage which you service over 25 years without having absolute ownership to the property. First, it makes it difficult for you to access fresh capital to recapitalize the building because someone has absolute ownership to it. Second, a lot of things will change before you finish paying and that’s how many American mortgagees have lost property on which they had already serviced a significant portion.

8. I am sure the IMF and other creditors are following this transaction very closely and how it affects the planned programme negotiations. Though government will have a case to explain the debt is not on the treasury but on ZCCM IH, those Washington colleagues read between the lines and they will still bring the number on the government loan book and prove to government that Zambia has moved deeper into debt unsustainably.

9. On the whole, I congratulate government for saving the mine, keeping the jobs, owning the Mopani asset totally and all we can do now is to continue to advise about how to manage this asset and make it more profitable than Glencore did. We can learn from the mistakes of the old ZCCM and build on the previous failures to beef up our national coffers. Let there be no political interference in the operations of this mine. Otherwise, seven years from now, it will be the same old sad story. I wish all the people of Zambia well in this deal. It should be good for the country.

A Judge in London yesterday approved a settlement reached by Vedanta Resources covering 634 Zambian children in group litigation claiming that residents were harmed by discharges of toxic water connected to the mining giant’s copper operations.

Judge Edward Murray said after reading submissions to the High Court from lawyers for the claimants and Vedanta Resources Ltd. that he was satisfied that the settlement is “fair and reasonable” and in the best interest of the child claimants.

The details of the settlement are confidential.

The overall litigation, brought on behalf of the 3,730 individuals, arises from alleged harmful emissions from the Nchanga Copper Mine in Chingola, causing environmental and health concerns for the farming community residents.

The pollution from the mining operation has harmed the residents, their counsel, Richard Hermer QC of Matrix Chambers, told the court on Monday.

Vedanta is liable because it is Konkola’s parent company, he added.

Hermer said the case has already gone to the U.K.’s Supreme Court, which ruled in April 2019 that the claim for negligence and breach of statutory duty and its English parent company could be heard in England’s courts.

As part of that decision, Britain’s highest court backed a lower court’s ruling that Vedanta had assumed a duty of care over the operation of Konkola’s mine.

The overall case is still very much in its procedural infancy because of the detour to the Supreme Court, Hermer told Judge Murray on Monday.

“But the parties, as my lord will have seen, have constructively engaged in alternative dispute resolution and that has led to this morning’s application in respect of the children, there are 634 for whom we seek approval,” he said.

Representatives known as litigation friends for nine additional children are still being tracked down.

The judge agreed to Hermer’s request for the court to simply add the others to the order later if they approve of the deal on the basis of paper filings.

Counsel for Vedanta, Ognjen Miletic of Henderson Chambers, asked for the details of the settlement to be kept confidential, saying it could affect negotiations with the other claimants.

“It would be potentially prejudicial to Vedanta further down the line, in negotiating in relation to those claims if certain terms of these agreements…become publicly known,” Miletic said.

“Confidentiality is also required to protect the interests of children,” Vedanta’s lawyer said.

Judge Murray said confidential details of the deal didn’t need to be publicly disclosed, as he had read about them in written submissions before the hearing.

Hermer asked for the settlement to be sealed after he signed it off.

“It’s the start of the school year in Zambia and my lord would have seen that we’re quite keen for the wheels to be set in motion for funds to be released as soon as possible, in order to enable as many children as possible to be able to go to school,” Hermer said.

The judge said he would arrange with his clerk for that to happen straight away.

According to the Supreme Court’s April 2019 judgment, the claimants say that their health and their farming activities have been damaged by repeated discharges of toxic matter from the Nchanga Copper Mine in Zambia into their water, starting in 2005.

The Zambian citizens are, “by any standards, very poor members of rural farming communities served by watercourses which provide their only source of water for drinking (by themselves and their livestock) and irrigation for their crops,” the judgment notes.

The Nchanga Copper Mine has an open-pit excavation that is said to be the second largest in the world, according to the judgment.

Konkola Copper Mines PLC is Zambia’s largest private employer, providing jobs to some 16,000 people, mainly at the mine.

Vedanta, incorporated and headquartered in London, employs some 82,000 people worldwide.

The claims against both defendants include negligence and breach of statutory duty, the 2019 judgment states.

The causes of action against Vedanta arise by reason of the “very high level of control and direction that [Vedanta] exercised at all material times over the mining operations of the second defendant and its compliance with applicable health, safety and environmental standards,” according to the case’s particulars of claim.

The claimants are represented by Richard Hermer QC of Matrix Chambers, instructed by Leigh Day.

Vedanta is represented by Ognjen Miletic of Henderson Chambers, instructed by Herbert Smith Freehills.

The case is Nchanga Copper Mine Group Litigation v Vedanta Resources Ltd and another, case number QB-2020-001976, in the High Court of Justice of England and Wales.

By Dr Parkie Mbozi

IN LAST week’s article I elaborated the traditional functions of the mass media from normative and functionalist perspectives and how the media’s effective execution of these two functions will be crucial as Zambia goes to the polls this year. I further elaborated that an ‘ideal media’ will be crucial to ensuring that the 2021 elections are transparent, free and fair. The question is, how do we get the ‘ideal media’, that is judged as free, independent and, above all, ethical or professional during the elections and, more importantly, beyond August 2021?

The answer to this question, in my strongest of views, is going back to the drawing board, to the basics. That means another round of comprehensive media reforms, akin to the post-1991 reforms that the nation embarked on at the dawn of multiparty democracy under the Third Republic. The reforms culminated in very progressive pieces of legislation relating to freedom, independence and professionalism of the media, especially the public media, Sadly, the laws have either been amended or not actualized altogether to date, by successive self-serving regimes. We are back to where we were before 1991. The behaviour of the public media, for instance, is not any different from what obtained under the one-party UNIP regime and this needs to be corrected as a matter of urgency by the next government.

For starters, let’s look at what we mean by free, independent and professional media – what I am calling the ‘ideal media’. For each of the three benchmarks, I will articulate what the ‘Founding Fathers’ of the Third Republic Media reforms foresaw and how they dealt with it.

Media or Press Freedom: a free press is one that can execute its functions unhindered within the bounds of the law and professional code of ethics. Article 20 of the 2016 Constitution of Zambia provides for express freedom of expression and the press as follows:
“Except with his own consent, no person shall be hindered in the enjoyment of his freedom of expression, that is to say, freedom to hold opinions without interference, freedom to receive ideas and information without interference, freedom to impart and communicate ideas and information without interference, whether the communication be to the public generally or to any person or class of persons, and freedom from interference with his correspondence.”

The ‘Founding Fathers’ of the Third Republic Media reforms sought to guarantee that the media or press would have freedom to access information of a public nature by introducing the Freedom of Information Bill of 2002. This was in line with the international trends. For instance, ….African countries have enacted an access to information law of one form or another.

Sadly, for Zambia, the Bill remains just that: a Bill. Successive regimes have promised but failed to turn the Bill into law. The post-Mwanawasa MMD took it to Parliament but withdrew it at the last minute. The post-Sata PF has adulterated it to make it user-friendly for them. Its new contents are yet to be made public and the revised Bill is unlikely to head to Parliament before the 2021 elections. In spite of the explicit provisions for freedom of the press and expression, however, Zambian media houses and journalists face various restrictions under criminal, civil defamation, sedition and obscenity laws and provisions of the penal code, including the State Security Act.

The way forward is to take the Bill, in its original (2002) form, to Parliament for actualisation.

Media independence: is the next benchmark of the ‘ideal media’. Media independence relates to the media-state relations. In general terms, independence refers to an absence of any external control, particularly from the state. It denotes freedom from the external influence but also the capacity of media institutions to make their decisions and act ONLY according to their own logic. One scholar writes that, “It is closely intertwined with other basic ideals of the liberal-democratic understanding of media’s role in society, such as freedom of the press, critique of power, media as the ‘fourth estate’ and journalists’ watchdog role.”

Media that permit influence of external forces in their editorial decision-making therefore compromise their ethical and professional obligations of being objective, fair, balanced, impartial, truthful etc. Ultimately, they forfeit their position as the ‘fourth estate’ and watchdogs of society, especially of the Party in power. Traditionally media independence applies to how the state controls the public media. However, in the Zambian context there has been a growing trend of private media that choose to be appendages and (we can say) partners with the ruling party. Such media cast aside ethical standards for the sake of political expediency. The state also controls the media through regulations and control over issuance of licences in the case of radio and television.

The ‘Founding Fathers’ of the Third Republic Media reforms sought to guarantee independence of the Zambian media through by enacting the ZNBC Act of 2002 (specifically for ZNBC) and the Independent Broadcasting Authority Act of 2002. Both the ZNBC Act and the IBA Act were intended to forestall independence of the two institutions. This was to be attained primarily by appointing Boards through competitive processes and independent adhoc appointments committees drawn from institutions such as LAZ, religious organisations, human rights organizations, NGOs etc. Article 4A (1) of the 2002 ZNBC Act reads, “The functions of an appointments committee shall be— (a) to invite applications from persons with such qualifications as may be specified for appointment to the Board.”

The principle of inclusive, free and fair coverage was enshrined in the ZNBC Act of 2002. Section 7 of the Act spelt out the functions of ZNBC. The relevant sub-sections read, 7. (1) (a) provide varied and balanced programming for ALL sections of the populations; (b) serve the PUBLIC INTEREST; (e) contribute to the development of FREE and informed opinions and as such, constitute an important element of the democratic process; (f) reflect, as COMPREHENSIVELY as possible, the range of opinions and political, philosophical, religious, scientific, and artistic trends.
However, the 2002 ZNBC Act was amended to allow the Minister to appoint the Board. Critics have drawn attention to political interference in the operations of the ZNBC specifically, skewing its broadcasting to favour ruling party sources. Speaking on “Let The People Talk’ programme on Radio Phoenix on 10th March 2019, Chanda Kasolo, then MIBS Permanent Secretary, seemed so embarrassed by ZNBC’s naked biased and unprofessional coverage that he had to publicly rebuke the station.

He said, “I was there two days ago. I was speaking to the Director of Programmes and also my good friend who runs the Sunday Interview Mr. Zulu (Grevazio) and I said to them, it’s about time we started improving our outlook and image of ZNBC. We must allow the opposition to come on certain programmes and also voice out their views. We must allow debate between opposition and ruling party MPs and Ministers. And I know that my honourable Minister (Dora) Siliya is very keen that we do that. We discussed at length.”

In Confirming ZNBC’s loss of one key media principle – credibility -Kasolo further said, “We need to bring back ZNBC to where it was, a trusted source. At the moment everyone is suspicious of them. They are looking at them and saying, ‘no they are biased.” Sadly, he was fired sooner than his directive could see the light of day.

The IBA Act went through a similar fate as the ZNBC Act. The original Act provided for an ad hoc committee of independent organisations that would appoint the members of the IBA Board. The independently constituted Board would be the one issuing TV and radio licenses and regulating their operations. Unfortunately, the whole section relating to appointment of the Ad Hoc committee was removed by 2010 Amendment initiated by the MMD government. It was replaced with Section (2) that reads, The Board shall consist of nine part-time members appointed by the Minister.

This amendment is the genesis of the political interference and biased decisions (real or perceived) of the IBA. For instance, soon after taking power in 2011, the PF government appointed a Director-General for the ‘Independent’ Broadcasting Authority (IBA) in the absence of a board of directors. Similarly, the minister appointed heads of the state-owned media in the absence of boards of directors. Such developments confirm the cancer of political interference facing the public media and broadcasting industry in general resulting from amending the original IBA Act.

In 2017, the PF government introduced a clause that was never there before, which impels the IBA to collect TV levies on behalf of ZNBC, a key player in the industry. Isn’t this akin to the referee and a player wearing the same jersey and scoring in the same goal post? Allegations of impartiality in handling affairs of the broadcasting industry by the government constituted IBA is not an academic disposition. In real life some private TV and radio stations have faced closures and/or suspensions by the IBA, while ZNBC gets away with similar transgressions such as airing hate speeches of PF officials. To date Prime TV remains closed on what many believe are flimsy grounds.

The way forward after August 2021 is to restore the IBA Act and ZNBC Act to their original (2002) form. Similar legislation should be introduced pertaining to how the print media and the Zambia News and Information Services (ZANIS) should be independently managed.

Media Professionalism: this benchmark of an ‘ideal media’ can be described as one that sticks to professional ethics and a highly skilled one. The ethics are enshrined in Codes of Ethics of self-regulatory bodies (Media Councils) or Press Ombudsmen, wherever they exist world-wide. The key principles are: fairness, objectivity, accuracy, balance, truthfulness, impartiality and factual.

The ‘Founding Fathers’ of the Third Republic Media reforms sought to guarantee media professionalism in Zambia through self as apposed to state regulation. However, every self-regulation mechanism that has been put in place since 1991 has fallen flat due to disagreements and polarization within the media sector. From Media Council of Zambia (MECOZ) to Zambia Media Council (ZAMEC), nothing has worked.

As a way forward on media regulation, it is logical to suggest for a hybrid mechanism that revolves around a legally constituted entity that ‘self-regulates’ the media. However, once the law is in place, the state should have no role in how this body is constituted, conducts its business and how it determines who its members are. Lessons are there in the SADC region and in the local legal and medical disciplines to learn from.

To conclude, for the nation to enjoy the benefits of free, independent, and professional media, a fresh start is needed after August 2021. There is absolutely no need to re-invent the wheel. The original IBA Act of 2002, ZNBC Act of 2002 and the Freedom of Information Bill already provide a firm foundation
.