In last week’s Monday Opinion, we looked at the proposed amendments to the Environmental Management Act and their potential implications for responsible Large-Scale Land-Based Investments (“LSLBI”) in Zambia. This week, our analysis shifts to identifying gaps in the Act, and providing recommendations for reform, particularly in relation to responsible land-based investments.

The following are some of the gaps in the Environment Management Act, 2011 (the “Act”) and the Environmental Management (Amendment) Bill,2023 (the “Amendment”) in relation to responsible LSLBIs and corresponding recommendations:

1. The exclusion of socio-economic and cultural aspects in key definitions.

The Amendment introduces new definitions of “environmental assessment” as the process of evaluating the potential positive and negative effects that a proposed project might have on sustainable environmental management, and “resource efficiency” as the sustainable utilisation of the earth’s limited resources to minimise environmental impact. However, these definitions appear to be limited only to the impact on the environment, without encompassing the vital socio-economic and cultural dimensions that affect the overall well-being of humans. Thus, there is a need to further enhance these definitions by including the impact on the social, economic and cultural wellbeing of affected communities. In the absence of which there is risk of

2. The exclusion of key ministries from the Board of the Zambia Environmental Management Agency (ZEMA).

The Amendment excludes representation of key ministries including the Ministry of Health and Ministry of Lands and Natural Resources. Health impact assessment of a project is fundamental when assessing environmental impacts, yet it is often overlooked. A good example where health impact should have been a consideration alongside environmental assessment is lead mining in Kabwe which resulted in lead poisoning with adverse environmental and health consequences. Moreover, the exclusion of the Ministry of Lands may have an implication on the effective oversight and regulation of natural resource utilisation and land tenure security of the vulnerable and marginalised in society.

3. Lack of inclusive provisions on environmental education and awareness.

While the provisions in the Act pertaining to environmental information go far in requiring ZEMA to account for and maintain environmental information, integrating environmental information into education, and raising public awareness on environmental issues, there is little provided in the Act on the sort of environmental information that will be taken and prioritised. In other words, much of these provisions allow for ZEMA to control and disseminate information but do not make explicit how information sharing might take place, specifically how traditional authorities and local communities may contribute to the sorts of knowledge and information that is stored and disseminated. Unfortunately, the Amendment misses an opportunity to address these issues.

Therefore, to ensure comprehensive and inclusive environmental information management, the Act should be amended to include provisions that specify the types of environmental information to be collected, prioritise data relevant to local communities, and emphasise collaborative information sharing with traditional authorities and local communities. The Act should require ZEMA to actively engage and involve traditional authorities and local populations in the process of gathering and disseminating environmental knowledge. By enhancing transparency and inclusivity in information gathering and dissemination, the Act can foster a more informed and empowered public, leading to better environmental decision making and overall environmental conservation efforts.

4. Lack of comprehensive provisions on public participation in environmental decision making

The importance of public participation in environmental decision-making lies in its ability to foster transparency, inclusivity, and accountability. While the Act gives the public the right to be informed and participate in decisions affecting the environment and in the formulation of environmental policies, strategies and regulations, the Act does not place any mandatory corresponding duties on the Agency to ensure effective public engagement and responsiveness, particularly for people on the grassroots. As such, there is a need for provisions within the Act to outline a clear framework for meaningful and timely public participation in decision-making processes. Additionally, the provision should emphasise the involvement of traditionally marginalised/vulnerable communities, particularly rural communities whose vies are often not considered in environmental decision making.

5. Inadequate provisions on environmental monitoring and reporting

The Act highlights the Agency’s role in monitoring various environmental phenomena and the operations of activities to evaluate their immediate and long-term effects on the environment. However, these provisions lack specific guidance on monitoring the broader impacts, including the well-being of humans, especially concerning large-scale investments. There is therefore a need for the Act to explicitly provide for comprehensive monitoring of industrial and developmental activities, extending beyond environmental considerations to encompass the social and economic well-being of individuals and communities, especially in the context of large-scale investments.

About the Author:

Luyando Muloshi is an advocate for the High Court of Zambia. She holds a Masters and Bachelors Degree in Law from the University of Zambia and is a Legal researcher at the Centre for Trade Policy and Development.