In this week’s Monday Opinion, we examine the proposed amendments to the Environmental Management Act and their implications for responsible land-based investments. We explain the necessity of advancing such investments, provide insights into the nature of the proposed amendments and their implications on the landscape of responsible land-based investments.

Why the need to advance responsible land-based investments?

While it is recognised that large-scale land-based investments (LSLBIs) play a crucial role in fostering development and socio-economic progress, particularly in developing nations such as Zambia, this economic and social progress must not come at the expense of environmental degradation or social inequality. The pursuit of responsible LSLBIs that prioritise environmental preservation, respect the rights of communities that host such investments, and enhance community benefits is essential for achieving change that will benefit all stakeholders involved.

Striking a balance between development and safeguarding community interests will not only pave the way for Zambia’s socio-economic growth but also foster a harmonious and prosperous future for its people. In this context, understanding the implications of existing policy and legislative frameworks on land-based investments becomes a critical endeavour.

Understanding proposed amendments to the Environmental Management Act

The Environmental Management (Amendment) Bill of 2023 (“the Amendment”) covers a number of key issues that are either absent from or not clarified in the original Environmental Management Act, 2011 (“the Act”). As a whole, these changes have little implications for LSLBIs in Zambia. Nonetheless, the following are three (3) important issues covered by the Amendment.

1. Revised composition of the Board of Zambia Environmental Management Agency (ZEMA).

The Board has been stripped down from thirteen members to nine, to include representatives from the Ministries concerned with energy, mines, green economy and agriculture, a representative of the Attorney General, a non-governmental organization dealing with environmental management, and three representatives from the private sector. This is a shift from the wider representation that involved the ministries of environment, natural resources, health, and local government. The Amendment also removes representatives from the chamber of commerce, a scientific/research institute, and the vague “two other persons” requirement.

The potential implications for this change are threefold. First, these changes have clarified what was once a fairly vague set of criteria for membership and hopefully will make the Board more efficient. Second, there seems to be a marked swing in favour of the private sector (a third of the Board) which could have implications for how the Board handles its various functions such as environmental impact assessment approvals, the granting of licenses for toxic chemicals, and so on. Third, the exclusion of the Ministry of Local Government from the Board may have implications on local level representation at the decision-making level, creating more centralised planning and decision making though the actual effects are yet to be seen.

2. The inclusion of green economy and climate change considerations.

The Amendment adds to ZEMA’s duties the mainstreaming of green economy and the environment in national planning, and the promotion of green economy and eco-labelling in addition to promoting cleaner production technologies and techniques and the sustainable consumption of goods and services. The Agency also now has the duty to protect human beings and the environment against all environmental emergencies rather than just those involving toxic waste as is required in the original Act. While these functions have tasked ZEMA with focusing and upholding issues that have a direct impact on how Zambia responds to climate change, there will be need for the Government to allocate adequate resources to bolster ZEMA’s capacity to discharge these additional duties.

3. The introduction of penalties for failure to conduct an Environmental Impact Assessment (EIA).

There exists a gap in the Act on its failure to provide sanctions for a proposed activity proceeding without an EIA approval. These EIAs hold crucial significance in promoting responsible development and safeguarding not only the environment but also the socio-economic livelihoods of those affected by the proposed activity. The Amendment attempts to address the gap by introducing a penalty of ZMW210,000 and/or imprisonment of a maximum term of 7 years. However, a concern arises on whether this fine is sufficient to serve as a deterrent especially for large scale, well-resourced investors. An example can be drawn from the case of South Africa where fine penalties have proven ineffective.

This concludes our discussion for this week. Join us next week as we proceed to identify gaps in the Act and the Amendment and make recommendations for reform as they relate to LBIs.

About the Author:

Luyando Muloshi is an advocate for the High Court of Zambia. She holds a master’s and bachelor’s degree in law from the University of Zambia and is a Legal researcher at the Centre for Trade Policy and Development.