WHAT HAS HAPPENED TO LEGAL DRAFTING IN ZAMBIA LATELY?:
THE CASE OF THE MINERALS REGULATION COMMISSIOLATELY
Last week, Government deferred the consideration of what is called as the “Minerals Regulation Commission Bill, 2024” that is intended to repeal and replace the Mines and Minerals Development Act, 2015.
The deferrement arose after it was noted by MPs, in particular, Kaminsa Member of Parliament Hon Christopher Kangombe that the bill had fundamental omissions of key components of the Mines and Minerals Development Act 2015 that were enacted to empower Zambian citizens. Whether the omission was a deliberate orchestration by the legal drafting team at the Attorney General’s Chambers or scheme by State House to serve foreign interests is a matter of speculation and conjecture to who it may concern.
But on my part, I purely blame it on ZIALE. Lately the numbers of student passing is too high. I think this contemporary chikwakwa policy is contributing to such pathetic quality of statute outputs. In fact, it has become suicidal for the country to allow any repeal and replacement of any existing law because the likelihood of replacing a gem of a piece of legislation with marubbish of a law has become very, very high. It is better these hopeless drafters just handle amendments, not repeals and replacements.
Besides a few fundamental omissions that Hon Kangombe raised, there are also constitutional lapses. In addition, there is also and elementary titling issue which anybody who passed any basic degree and wrote a thesis is able to pin point.
Let me start with the basic issue: the citation or the title of the biIl. I have shared the objectives of the bill here.
When you read the objects or objectives, you will agree with me that no research supervisor in a university or college can approve your research or thesis topic if you were to “Minerals Regulation Commission Bill, 2024”. Not even “Minerals Regulations Bill, 2024” could be approved because minerals and mining are two different things altogether.
Coming to the constitutional lapse, besides ad-hoc commissions established through the Inquiries Act, Cap 41 of the Laws of Zambia, all other commissions are a creation of the Constitution of Zambia 2016.
According to Article 266 of the Constitution of Zambia 2016, a “commission” means a commission established under Part XVIII of the Constitution. Perusal of Articles 216 to 242, there is nothing called “Minerals Regulation Commission”. Implicitly, if parliament had passed the bill, the commission established under such an Act would have been unconstitutional. According to Article 1 of the Constitution of Zambia Amendment 2016, any written law that is inconsistent with its provisions is void to the extent of the inconsistency.
The implication of the lapse is that such commission established would not only be unconstitutional but also illegal. Consequently, any action taken by a so-called commission would be illegal.
To cut the whole story short, please Ba UPND Government don’t create a crisis in the management of the mining sector. Abandon the marubbish Minerals Regulation Commission Bill. If there is any addition you intend to make already existing Act, just amend it. This chipantepante strategy you are relying on will create a disaster for this country in the mining sector.
Don’t bring that bill to parliament again. Mwatusebanya pafula!
BY PETER SINKAMBA
KUMWESU AUG 9 2024.
