By Peter Sinkamba
LIQUIDATION OF KCM WAS AN ILLEGAL PROCESS: ARE AGREEMENTS MADE UNDER THE AUSPICES OF LIQUIDATION VALID AT LAW?
According to Section 138(2) of the Insolvency Act of 2017, as read with Section 71 of the Mines and Minerals Development Act of 2015, the liquidation proceedings commenced under the Insolvency Act are not applicable. This is so because the Mines and Minerals Development Act has provided for its own winding up process as set out in the Act and its subsidiary legislation.
Other laws where the Insolvency Act is not applicable for winding up purposes is the Legal Practitioners Act.
Since the provisional liquidation of KCM was commenced under the Insolvency Act of 2017 which is not applicable for mining operations as explained above, this entails that the entire provisional liquidation process of KCM was illegal ab initio, meaning it was illegal right from the start.
In this regard, are any agreements entered into by the Provisional Liquidator with ZCCM-IH for liquidation renumerations or with the State for indemnity against prosecution against criminal offences related to or incidental to the liquidation process valid at law?
This is the main question that confronts the case of Provisional Liquidator Milingo Lungu and the Director of Public Prosecution Lillian Fulata Shawa Siyuni, SC.
The starting point for the Constitutional Court or Judicial Complaints Commission is to determine whether the liquidation contract was valid or void. If this determination takes into consideration of Section 138(2) of the Insolvency Act of 2017, as read with Section 71 of the Mines and Minerals Development Act of 2015, it will be found the liquidation contract is void. This would mean that the contract has no force or effect, so neither party is bound by it and neither party can rely on it. This is so because the object of the agreement is illegal or against public policy and therefore an unlawful consideration or subject matter.
To cut the whole story short, the DPP agreement with Milingo Lungu is illegal. She should not have made it in the first place. This is a clear case of incompetence and gross misconduct contemplated in Articles 143 and 144 of the Constitution Amendment 2016. The better resign or she is most likely to be fired (removed) by the Presidentvon the recommendation of JCC for incompetence and gross misconduct.