By Ernest Chanda
LUSAKA lawyer Makebi Zulu says all successful bidders whose safari hunting concession agreements were canceled by tourism permanent secretary Evans Muhanga can sue the government.
Muhanga recently cancelled hunting concession agreements signed in December 2020, against advice from Attorney General Mulilo Kabesha.
Zulu warned Muhanga that whatever money government would have to pay the bidders, it will later be recovered from him.
“Perhaps the best option is for whoever is affected to go to the Public Protector and start up the matter. There is the Public Protector. They have an option of going to court. All those options are available. Whoever disregards the advice of the Attorney General does so at their own peril. So, in the event that government is found liable, government will have to pay,” warned Zulu.
“And government will have to recover whatever they will lose from him (Muhanga). That’s the problem that the gentleman will find himself in. Whoever does so, (disobeys Attorney General’s advice) does so at their own peril.”
Last month, Muhanga cancelled safari hunting concession agreements signed in 2020, against the advice of Attorney General Mulilo Kabesha, as the hunting season opened on May 1, 2022.
Instead, he ordered a readvertisement of the same in his memorandum to director of national parks and wildlife in the Ministry of Tourism Dr Chuma Simukonda dated April 22, 2022.
Afterwards, on May 13, 2022, Muhanga terminated the contract for Dr Simukonda who is believed to have advised him against ignoring legal advice from the Attorney General.
According to the Attorney General’s advice in a letter dated January 5, 2022 addressed to President Hakainde Hichilema on tender No. MTA/SP/001/2020, there was nothing illegal about the tender and that cancelling it would attract law suits against the government.
“Your Excellency, I find it pertinent to make an appointment with you and explain the legal implications relating to the subject matter. Your Excellency, prior to meeting you [I] wish to bring it to your attention through this letter that I received a letter from the Ministry of Tourism and Arts reference No. MTA/54/14/2 dated 15th December, 2021 in which the Ministry was seeking a legal opinion on the cancellation of Hunting Concession Agreements (hereinafter referred to as ‘HCAs’,” Kabesha wrote.
“The circumstances that engendered the opinion is attributed to your directive to the Minister and Permanent Secretary of the Ministry of Tourism to the effect that the execution of the HCAs must be halted and that the negotiated HCAs must be cancelled.”
He cited formalities which prescribe a genuine hunting concession agreement and advised that once they are met then the tender remains legal.
Citing case law, Kabesha advised against cancelling the agreements as that would attract legal suits on government and subsequent loss of income through compensations to the affected parties.
“Your Excellency, once all these formalities are met, the contract or contracts come into being. According to the Procuring Entity all these procedures were met which resulted in the HCAs being approved,” explained Kabesha.
“In the case of National Drug Company Limited and Zambia Privatisation Agency v Mary Katongo, the Supreme Court held that: ‘It is trite law that once the parties have voluntarily and freely entered into a legal contract, they become bound to abide by the terms of the contract and that the role of the court is to give efficacy to the contract when one party has breached it by respecting, upholding and enforcing the contract.’ In view of the cited case and in the absence of cogent evidence of infringement of section 69 (1), it becomes legally unsustainable to terminate the HCAs. Any attempt to effect will undoubtedly lead to law suits against Government which is striving to resuscitate the economy of the country and at the same time creating an enabling environment for investment and respect of the law. I humbly render my advice.”
Specifically, the affected hunting concession agreements include the following:
Musungwa and Shezongo Community Resources Board and JVZ Safaris Limited, relating to safari hunting rights in Nkala Hunting Block in Nkala game management area.
Nabwalya Community Resources Board and Kuwama Safaris Limited, relating to Safari hunting rights in Nabwalya Hunting Block in Nabwalya Game Management Area.
Malama and Kakumbi Community Resources Board and Kwalata Safaris Limited, relating to safari hunting rights in Lower Lupande Hunting Block in Lupande Game Management Area.
Chikwa Community Resources Board and Mopani Safaris Limited, relating to safari hunting rights in Chikwa Hunting Block in East Musalangu Game Management Area.
Mulendema Community Resources Board, Chibuluma Community Resources Board, Kabulwebulwe Community Resources Boards and Nedzo Safaris Limited relating to safari hunting rights in Mumbwa West Hunting Block in Mumbwa West Game Management Area.
Chifunda Community Resources Board and Kocango Safaris Limited relating to safari hunting rights in Chifunda Hunting Block in East Musalangu Game Management Area.
Several stakeholders, including good governance activist Brebner Changala, Socialist Party president Fred M’membe, acting PF president Given Lubinda, and State Counsel Sakwiba Sikota, have advised Muhanga against the cancellation, warning that government would pay heavily when bidders sue.
And on May 4, 2022, Muhanga wrote a letter officially informing all the bidders about the cancellation.