December 12, 2011
In a landmark judgment, the Lusaka High Court has ordered Konkola Copper Mines (KCM) to pay K10billion (US$2 million) to 2000 Chingola residents on Zambia’s Copperbelt for polluting the Mushishima river.
The Mushishima is a tributary of the Kafue River, which accounts for about 40 percent of Zambia’s domestic water supply but is, unfortunately, also the country’s most polluted river.
Supreme Court judge Phillip Musonda sitting as High Court judge, ordered that each of the 2000 residents be paid K4 million as general damages and K1 million as punitive damages.
He also ordered that the damages should attract the central bank’s long-term deposit rate from the issuance of the writ to the day of judgment and later short-term deposit rate until payment is made.
In delivering judgment, Justice Musonda, who castigated KCM for its irresponsible behavior, said the development will deter would-be polluters from discharging poisonous substances without diminishing their potency to cause harm to the environment, human beings, and animals.
In the judgment delivered on November 10, Justice Musonda said the polluting of the water by the mining company was a lack of corporate social responsibility, criminal, and a tipping point for corporate recklessness.
In 2007, James Nyasulu and others sued KCM, the Environmental Council of Zambia (ECZ), now Zambia Environmental Management Agency (ZEMA), and Chingola Municipal Council for discharging effluent from its mining operations into the stream from which they get drinking water.
ECZ, as second defendant, was sued for allegedly failing or neglecting to carry out inspection or supervise maintenance of the pipes to meet acceptable standards while the municipal council was sued for failing to take adequate measures to mitigate and control the effects of the pollution of water by maintaining sufficient water reserves.
But Justice Musonda did not find any case against ECZ because he found no negligence on their part, adding that ECZ did the best it could by even shutting KCM operations at one point.
He said ECZ was dealing with a truant investor and it was not too late to prosecute KCM and set an example to others.
Justice Musonda said the fact that Zambia was in dire need of foreign investment to improve the well-being of its people does not mean its people should be dehumanized by ‘greed and crude capitalism’ which put profit above human life.
He said the plaintiffs had proved their case against KCM in common law and statutory law that the mining company was reckless and had no regard for human, animal and plant life because they thought they were politically correct and connected.
“The courts have a duty to protect poor communities from the powerful and politically connected.
I agree with the plaintiff’s pleadings that KCM was shielded from criminal prosecution by political connections and financial influence, which put them beyond the pale of criminal justice,” Justice Musonda said.
He said whether human beings had died or not; there was gross recklessness on the part of KCM, which must bear the moral, criminal and civil liability for the appalling tragedy because the company turned chingola residents into ‘guinea pigs’ and showed no remorse.
Justice Musonda said the plaintiffs had called victims of the pollution and expert evidence to prove that there was pollution.
Daison Mulenga, one of the affected residents who testified in the matter, told the court that in November 2006, there was no water supply for 10 days in Kabundi township and Mulonga Water and Sewerage Company supplied them with water pumped from Kafue River.
Mr Mulenga said after drinking the water, he experienced stomach pains, diarrhea and chest pains and that his sight was also affected.
Another witness Siku Nkambalume said his wife went to draw water from Kafue River for cooking, bathing, and drinking, but the following day, he had stomach pain and that he and the children had runny stomachs.
He was later informed by a doctor from Chingola’s Kakoso clinic that the water was polluted.
The judgment has cheered many.
Lusaka lawyer Kelvin Bwalya said he was happy that judgment had been passed in favour of his clients and that it was an important and landmark case that can be used to pursue other offenders.
Reverend Esson Simbeye of Chingola, for example, says the K10 billion KCM has been ordered to pay for polluting the Mushishima stream is inadequate but will at least serve as a ‘wake-up call’ for mining companies to stop polluting the environment with impunity.
Zambia Environmental Management Agency (ZEMA) principal information and communications officer Irene Chipili is upbeat about the judgment.
“As ZEMA, we are happy with the judgment because this has shown that we carried out our work in accordance with the provisions of the law then using the Environmental Protection and Pollution Control Act (EPPCA). For that reason, we were exonerated in this case,” Mrs Chipili said.
ZEMA was until April this year operating under the EPPCA which has since been repealed and replaced with the Environmental Managment Act (EMA). One of the reasons for this amendment related to the weak provisions in the EPPCA which the EMA has now taken care of.
“In comparison with the EPPCA, the EMA provides for enhanced public participation in environmental management. It provides for an option for both ZEMA and members of the public to sue for damages following pollution, and this is the provision that was used by Chingola residents,” Mrs Chipili said.
“We would like to encourage more of such vigilant actions from members of the public because environmental protection should not be a preserve of enforcement agencies alone.
Effective environmental management in this country requires the active participation of all stakeholders, including the general public.”
But KCM, a subsidiary of the London-registered Vedanta, whose market capitalization is more than US$ 4.4 billion, says it is consulting its lawyers regarding its legal options following the Lusaka High court ruling.
KCM head of public relations Joy Sata said KCM is a responsible company that has adopted global best practices and complies with all local regulatory requirements on environment, health and safety.
Ms Sata said KCM has a zero-tolerance policy on any action that will compromise the health and safety of its employees or residents.
“Over the years, KCM has taken many steps, including a multi-billion dollar investment programme to address the many issues it inherited at privatization.”