Zambia Air Force Projects Limited director Colonel Edgar Lungu has told the Lusaka High Court that if construction works at Kingsland City continued despite a stop order from ZEMA, it was wrong.

And the witness told the court that he was not aware that there was any approval from the Zambia Environmental Management Agency for the construction of houses, filling stations, hotels, schools, hospitals, among others, on the site located along Twin Palm Road in Lusaka.

This is a matter in which Chalimbana River Headwaters Conservation Trust and nine traditional leaders of the Soli people have sued Zambia Airforce Projects and Kingsland City Investment in the Lusaka High Court for carrying out construction works on a forest reserve.

Other companies sued include; Drimtown Investments Limited, Shangrila Investments Limited and Datong Construction Limited.

The plaintiffs are seeking an injunction restraining the defendants from continuing with the construction of the Kingsland City Project in the area, and an order declaring that the developments are a threat not only to the Chalimbana River Catchment but the greater Lusaka Aquifer system.

On April 24, this year, High Court judge Ruth Chibabuka granted the plaintiffs an injunction restraining the defendants from carrying out any further building and constructions works on the forest reserve.

She, however, recused herself from handling the matter due to conflict of interest relating to the land in question and the matter was later reallocated to justice Mwila Chitabo.

When the matter came up before justice Chitabo for hearing of the inter-parte injunction, Wednesday, Colonel Lungu, a witness for the first defendant, was cross-examined by the plaintiffs’ lawyer, Mutembo Nchito.

Col Lungu told the court that before the injunction was granted, Zambia Airforce Projects Limited and the other defendants were not carrying out any constructions on the said land but were simply maintaining the premises.

He claimed that when the Zambia Environmental Management Agency (ZEMA) ordered Zambia Airforce Projects Limited to stop the construction on September 22, 2017, the project stopped and only maintenance works continued.

Asked if there was approval from ZEMA for the construction of houses, filling stations, hotels, schools, hospitals, among others, on the site, the witness said “not to my knowledge”.

And during re-examination, Lungu told the court that government owned the Zambia Air Force Projects Limited.

Below is a verbatim of the proceedings:

Mutembo: If the whole construction is an illegality by its very nature, there is a very good ground for us to then submit that this injunction should be sustained. Are you aware that in fact, Zambia Air Force cannot own a company?

Lungu: I’m not aware my Lord.

Mutembo: But, in fact, you have confirmed to this court that ZAF owns Zambia Air Force Projects Limited?

Lungu: Yes my Lord

Mutembo: The plaintiffs are complaining that this development that you have brought to Zambia Air Force Projects Limited does not follow environmental laws. That’s the complaint, correct?

Lungu: Yes my Lord.

Mutembo: And one of the things that you have brought to this court is a document called a decision letter from the Zambia Environmental Management Agency, correct?

Lungu: Yes my Lord.

Mutembo: And according to you, that document shows that Zambia Air Force has followed environmental law, correct?

Lungu: Yes my Lord.

Mutembo: And it is your evidence that the Zambia Air Force is bound by this decision letter?

Lungu: Yes my Lord.

Mutembo: My Lord, I want to refer the witness to the decision letter in the affidavit of May 23. I want to draw the attention of the witness to paragraph three of the decision letter. You agree with me that not withstanding this decision, before the injunction of this court, Zambia Airforce Projects Limited and other defendants were actually busy constructing that project? Houses were being built, before the matter came to court?

Lungu: No. To the best of my knowledge, they were just maintaining the premises.

Mutembo: What was the project between Zambia Air Force Limited and other parties about?

Lungu: The project was about ZAF providing social amenities to the already existing Zambia Air Force development or housing project which is already in existence. But ZAF did not have capacity to develop those social amenities hence this position.

Mutembo: What was going on, on that site, what were they building?

Lungu: It’s a mixed setup. They are building houses, filling stations, hotels, schools, hospitals, among other [things].

Mutembo: Did the project start?

Lungu: Yes, the project commenced.

Mutembo: So there was a project running at Kingsland City, [or] whatever, I don’t know what it’s called now.

Lungu: Yes, a project commenced.

Mutembo: What’s the name of the project?

Lungu: The project is Kingsland City.

Mutembo: So Kingsland City was in the process of being constructed before the injunction was granted?

Lungu: Yes my Lord.

Mutembo: Maybe we can read for the court, what does the decision of ZEMA say in 3.11?

Lungu: (reading) “In view of the sensitivity of the site and the diversity of the project, the EIS report is approved at strategic level while the detailed assessment of the various components shall be approved individually.”

Mutembo: So according to that decision, ZEMA required ZAF and it’s partners to subject themselves to detailed assessment of the various components, correct?

Lungu: Yes my Lord.

Mutembo: According to the decision, when was the project supposed to commence? Read 3.13.

Lungu: 3.13 reads as follows…“Project implementation shall only commence once Zambia Air Force Project Company Limited complies with the requirements of Water Resources Management Authority (WARMA) act number 21 of 2011 and provide proof thereof to the agency.”

Mutembo: According to what you have read, when were you supposed to commence the project?

Lungu: My Lord, I’m unable to answer.

Mutembo: What was the ZEMA directive of when the project should commence?

Lungu: Upon, my Lord, submitting certain detailed approved…and providing proof thereof.

Mutembo: As a director, have you complied with the requirements of the Water Resources Management Act number 21 of 2011?

Lungu: I’m unable to answer.

Mutembo: Just answer the question, I put it to you that in fact you haven’t, correct?

Lungu: I’m unable to comment.

Mutembo: You are a director, have you, it’s a yes or no?

Lungu: I can say yes and I can say no at the same time.

Mutembo: You agree that you were required before you started any construction or any project implementation to comply with WARMA (Water Resources Management Act ), correct?

Lungu: Yes my Lord.

Mutembo: And to provide proof that you have. Have you brought any proof that you complied with WARMA?

Lungu: My Lord we haven’t submitted that.

Mutembo: Let’s go to 3.15, the complaint that the community has is that your project is going to interfere with their water security. Read 3.15.

Lungu: 3.15 reads as follows… “the Zambia Air Force Company Limited shall prepare and submit for approval, a comprehensive hydrological study of the Chalimbana Sub Catchment prior to project implementation.”

Mutembo: Colonel, you have provided a very thick further affidavit to explain a number of issues, concerning this project. Have you brought the comprehensive hydrological study of the Chalimbana Sub Catchment?

Lungu: No my Lord.

Mutembo: Has the hydrological report been done?

Lungu: It’s in the process my Lord.

Mutembo: But it has not been concluded?

Lungu: Yes my Lord.

Mutembo: So it couldn’t have been approved by ZEMA?

Lungu: Yes my Lord.

Mutembo: You are also required to have detailed sewerage management plan?

Lungu: Yes my Lord.

Mutembo: Have you brought any of those documents to court in this thick affidavit of yours?

Lungu: No my Lord.

Mutembo: Have those been approved, the detailed sewerage management plan?

Lungu: I’m not very sure, I have to go back.

Mutembo: What about the water management plan in 3.17, have you brought that to court?

Lungu: No my Lord.

Mutembo: ZEMA also forbids you from sinking a borehole on that site according to 3.18.

Lungu: Yes my Lord.

Mutembo: To your knowledge, where’s the water coming from for the project? Are there no boreholes there?

Lungu: To my knowledge, no. Apart from at the management office where our offices are situated.

Mutembo: You are connected to Lusaka Water?

Lungu: My Lord, we have Zambia Air Force which has got water.

Mutembo: Is it not fair for the community to be heard before such a big project which might impact their water is allowed to go ahead?

Lungu: It would be fair my Lord.

Mutembo: That project is not supposed to go ahead before you connect to Lusaka Water and Sewerage, correct?

Lungu: Before we start using the facilities my Lord.

Mutembo: My question is very simple, its not supposed to go ahead before you connect to Lusaka Water, correct?

Lungu: Yes my Lord…I’m not aware of that condition.

Mutembo: Has the ecological management plan been approved by ZEMA?

Lungu: I’m not aware of that my Lord.

Mutembo: I was referring to 3.18.

Lungu: I’m unable to answer.

Mutembo: So you don’t know whether its been approved?

Lungu: I’m not in a position right now.

Mutembo: You either know or you don’t know sir.

Lungu: I don’t know.

Mutembo: So there is quite a lot that you don’t know correct?

Lungu: Yes or no my Lord.

Mutembo: But you would agree with me that before commencement of any project, ZAF Limited and its partners required to follow the law, correct?

Lungu: Correct my Lord.

Mutembo: So if ZEMA says to ZAF Limited ‘stop you haven’t complied with the law’, Zambia Air Force Limited should stop any activity, correct?

Lungu: Yes my Lord.

Mutembo: In fact, any citizen or any company, corporate entity should obey ZEMA, correct?

Lungu: Yes my Lord.

Mutembo: In this particular case, when ZEMA said ‘stop you haven’t complied with the law’ did you stop?

Lungu: We did stop.

Mutembo: When did you stop?

Lungu: My Lord, I haven’t heard your question properly.

Mutembo: I will rephrase, are you aware that on September 22, 2017, ZEMA said ‘stop whatever you are doing’?

Lungu: Yes my Lord.

Mutembo: Did you stop?

Lungu: To the best of my knowledge, we ordered the project to stop and just maintain the grounds.

Mutembo: So how were all those buildings built if you had stopped?

Lungu: The building started in 2016.

Mutembo: I put it to you that ZAF ignored ZEMA and continued with the construction, notwithstanding the stop order?

Lungu: I have not much to explain…I don’t know.

Mutembo: But it is your position that if Zambia Air Force continued constructing with a stop order, that was wrong, correct?

Lungu: Yes my Lord.

Mutembo: Even the other parties, if they continued constructing with a stop order that was wrong, correct?

Lungu: It was wrong as well.

Mutembo: You mentioned that there are things like filling stations, hotels and other projects that are going to be built, do you have approval of those from ZEMA?

Lungu: Not to my knowledge my Lord.

Mutembo: So its only fair that all these issues be examined by the court before we know which way to go, correct?

Lungu: Yes.

Re-examination

Attorney General Likando Kalaluka: You were being asked about who owns Zambia Air Force Projects Limited. So I will ask you again, who owns Zambia Air Force Projects Limited?

Lungu: It’s the Government of the Republic of Zambia.

Further re-examined by another counsel for the defendants, Lungu said they consulted stakeholders on the Kingsland project.

The next witness to testify was a plaintiffs’ witness identified as Robert Chimambo, a 72-year-old farmer of Kuka Farm in State Lodge, also a secretary of the Chalimbana River Headwaters Conservation Trust.

He told the court that a few years ago, stakeholders comprising small holder farmers around the forest reserve formed the Chalimbana River Headwaters Trust to protect the critical ground water recharge area.

Cross examination
Attorney General Likando Kalaluka: You mentioned earlier that you are a farmer by occupation, do you have any qualifications in water management or engineering?

Chimambo: Qualifications as in college, no. But as a farmer, I’m qualified to manage water.

Kalaluka: Obviously you are not a hydrologist?

Chimambo: No.

Kalaluka: Would you know what aquifer means?

Chimambo: My Lord, in simple terms aquifer is an underground water tank.

Kalaluka: In paragraph five of the affidavit says “the plaintiffs have commenced an action against the defendants challenging the first to fifth defendants construction works on the ecologically and environmentally sensitive forest reserve no. 27 where a critical and sensitive underground water recharge area known as the Chalimbana River Catchment is located…” My question sir is that have you ever carried out an underground assessment of the water aquifer system in Chalimbana?

Chimambo: No, not personally.

Kalaluka: Kindly inform the court who did an underground water aquifer system assessment in forest 27?

Chimambo: The old water literature affairs department.

Kalaluka: Have you brought it to court?

Chimambo: That hasn’t been brought, I’m sure WARMA is here with us.

Kalaluka: Unfortunately, WARMA has not submitted anything to support the grant of an injunction in this case. Since you say you have not brought that literature to the court, what do you expect the court to base its decision on to grant you an injunction?

Chimambo: As stated my Lord, the Trust is in possession of many scientific studies which we shall avail to the court at a later date.

Kalaluka: Do you have an idea of how much worth, or the total cost of the developments that are taking place at the Kingsland City project?

Chimambo: I have no idea.

Kalaluka: Did you make an undertaking to pay any damage that maybe caused as a result of an ex-parte injunction which the court ordered to stop work? Did you make an undertaking to pay any monies to any damage that may have been caused?

Chimambo: No.

Kalaluka: Are you in a position to know whether any of the plaintiffs have given such an undertaken?

Chimambo: I don’t know.

Zambia Air Force Projects in-house counsel Lt Colonel C Nambote: Just for the avoidance of doubt, you are not a hydrologist, correct?

Chimambo: No I’m not.

Nambote: In your affidavit, you alleged that Zambia Air Force Twinpalm housing project is contaminating the aquifer and that the project might further contaminate the aquifer. Is that what paragraph eight of your affidavit says?

Chimambo: My Lord, as we are talking now, the Chalimbana river has been polluted with fecal matter.

Nambote: Have you placed any report, be it a contamination report or pollution report by an expert before the court that indeed this contamination exists?

Chimambo: Yes my Lord, there’s a WARMA report in our documents.

Nambote: I bring your attention to your affidavit, which you swore. This is the affidavit on which I’m cross examining you, therefore I have asked you whether or not you have placed, following your claim in paragraph eight, whether or not you have placed before court a report to support your violent claim?

Chimambo: Not yet, but it exists.

Nambote: Paragraph nine of your further affidavit, says “the plaintiffs and other Lusaka and Chongwe residents have already experienced the adverse effects of a raw sewerage discharge from the ZAF Twinpalm housing projects into the Chalimbana River system”. Have you placed any evidence before court to support your claim in paragraph nine of your affidavit?

Chimambo: No, I have not.

Nambote: You have informed the court that you are secretary of the Chalimbana River Head Waters Conservation Trust. Is this a private entity or owned by government?

Chimambo: It’s a private Trust registered under PACRA by private individuals.

The matter comes up on Friday for submissions.