Thursday, 22 March 2007


I. P. A. Manning
20 March, 2007


1. Is an Act to establish the Citizens Economic Empowerment Commission and to define its functions and powers; to establish the Citizens Economic Empowerment Fund; and to promote the economic empowerment of citizens, in particular, targeted citizens – defined as someone who is or has been marginalised or disadvantaged and whose access to economic resources and development capacity has been constrained due to various factors including race, sex, educational background, status and disability;

2. In the performance of the Commission's functions under this Act, the Commission shall effectively liaise and consult appropriate State institutions and shall have the power to give such instructions or directions to any State institution or a company

3. The President may give to the Commission such general or specific directions with respect to the discharge of its functions as the President considers necessary and the Commission shall give effect to such directions.

4. The commissioners shall be appointed by the President.

5. The Commission shall be empowered to take whatever actions necessary to ensure broad based economic empowerment of targeted citizens, citizen empowered companies, citizen influenced companies, citizen influenced companies and citizen owned companies.


The Zambian Citizens Economic Empowerment Act of 2006 (CEE) is legislation which will centralize further power in the Presidency, give wide powers to a Commission reporting directly to him, enrich – in the short term, the political elite, freeze foreign investment, ensure continued impoverishment and the unsustainable use of natural resources, and greatly exacerbate the already unacceptable erosion of the national life by corruption and theft in the name of black indigenous empowerment.

This is exactly what has happened in South Africa through the imposition of the South African legal instrument: Broad-based Black Economic Empowerment Act No. 53 of 2003, which is being implemented by the Black Economic Empowerment Advisory Council directly under the control of the South African President.

Prior to the promulgation of the CEE Act, the civil service were instructed to start implementing it, resulting in a racial bias on such issues as lodge leases and the arrogant manner in which Legacy Holdings Zambia advanced on its plans for Mosi oa Tunya National Park. This does not auger well for the future.


The CEE Act is being introduced to Zambia at a time when the Commission for Africa was formed to assist Africa raise the living standards of its people. After extensive consultations and lobbying it persuaded the G8 group of nations at the Gleneagles Summit to write off much of Africa’s debt in return for undertakings by African countries to improve standards of governance. As a result, once Zambia achieved the Highly Indebted Poor Country Initiative (HIPC) Completion Point in April 2005, most of the Paris Club creditors cancelled Zambia’s public debt, and the African Development Bank, the IMF and the World Bank - under the Multilateral Debt Relief Initiative borne out of the 2005 Group of 8 Gleneagles proposal, are now busy doing the same. If to this is added the agreed commitment to the mission of NEPAD, the UN Millenium Development Goals and the African Peer Review Mechanism, Africa is supposedly bent on self improvement – with the help of the world.

Zambia played a full role in the consultations with the Commission, and through its Zambia International Business Advisory Council (ZIBAC) – a member of which sits on both the Business Council of Zambia and ZIBAC (and is also Chairman of the CEE Commission – as well as Chairman of the Tourism Council of Zambia - and what may be described as the first Indigenous Zambian business group), therefore appeared set to become a role model for Africa.


Zambia has evolved in a hundred years from a land of isolated tribes, through rudimentary administration by a public company, to colonial protectorate status - where rule was indirectly managed through the chiefs, to political independence. Unlike Zimbabwe, it was not a Crown Colony where large areas of land were alienated to European settlers; and unlike South Africa it did not suffer Apartheid legislation and the repression of its black population.

The CEE Act appears therefore to to rectify a mythical colonial wrong, to remove some of the control and ownership of businesses from those who came here more recently and who are not black Africans – in the case of some of the first European settlers, fifty years after the arrival of the Ngoni. It does not encourage people to come here and to enter into partnerships with citizens as Mauritius and Ireland and China is doing. And it is likely to give expression to the simmering national xenophobia, which will metaphorically close the borders and harvest what has been produced by foreign and local non-black investors alike.

And Zambia is, by all credible economic performance measures, upholding a tradition of poor economic governance and the continued plundering of the national purse. At Independence, Zambia’s per capita income was the same as the Asian Tiger nations; now Hong Kong is 75 times richer, South Korea 25 times richer; and over the last twenty years – as reported by Transparency International Zambia, only 16% of national expenditure went on agriculture, health, education and local government – the very areas supposed to serve the poor.

The translation of shocks brought about by economic mismanagement – particularly when allied with volatile copper and oil markets, can elicit reactions from political leadership which further impoverish their countries. In 1975, following on from a fall in copper prices and a rise in oil prices, President Kaunda issued the infamous Watershed speech, an edict which overnight restructured the economy and lost Zambia a critical mass of private enterprise and government expertise, consigning its poor to a permanently impoverished state, accompanied by the rape of much of its natural resources. The CEE Act of President Mwanawasa will now negate a wave of new investment, of innovative new partnerships with tribal communities that do not alienate the land; and will diminish the growth of democracy.

The CEE has already negated the work of such bodies as the Natural Resources Consultative Forum (NRCF), a neutral platform for stakeholder participation in the management of natural resources - particularly policy formulation, established by the Ministry of Tourism, Environment and Natural Resources (MTENR). Now civil servants of that Ministry are unwilling to participate in its deliberations, knowing that they and the private business sector will be subject to the control and direction of the proposed Citizens Economic Empowerment Commission, itself directly under the control of the President.


The immediate impression of this Act, is that it closely resembles Lenin’s decree for the establishment of the People’s Commissariat of State Control in 1919, with Stalin as its first Commissar. It is not surprising, therefore, that the only country in Africa still with a communist party, South Africa, has supplied the model for the CEE Act. The legislative template is the South African legal instrument: Broad-based Black Economic Empowerment Act No. 53 of 2003, which is being implemented by the Black Economic Empowerment Advisory Council directly under the control of the South African President. The impact of this Act, applied to a rich country with a thriving business sector and a generally ably managed economy has been to enrich a small coterie of the black elite, provide considerable advancement opportunities for the emerging black middle class, ensure the unemployment of most of the black poor, and cause young and well-educated whites, Indians and Coloureds to emigrate.

But Broad Based Black Empowerment Act (BBBE), is now considered by the Peer Review Mechanism Report on South Africa to pose a serious obstacle to that country’s development –something the South African Government is trying to downplay. Why would Zambia escape such a judgement when the APRM gets round to its report on us?


For the CEE Act to have any credibility, it must be taken out of the hands of the State President, have its Commissioner removed and replaced by someone not involved in business, and must arm the Private Sector Development Forum in the fast-tracking of Greenfield projects through Trust structures - as inculcated in the Zambia Development Agency Act No. 11 of 2006, and already agreed to by the House of Chiefs and submitted to the 5th National Development Plan. It is time the Zambian poor receive the attention and support they deserve. The CEE Act could here become an Act serving their deliverance from deep poverty.


Acontribution to the Committee on Economic Affairs and Labour
The National Assembly

I. P. A. Manning
19 March 2007

The Zambia Development Agency Act No. 11 of 2006 takes the place of the repealed Acts: Investment Act; Privatization Act; Small Enterprise Development Act; Export Processing Zones Act; and the Export Development Act, creating the quango: The Zambia Development Agency


i) The national investment objectives
These are articulated based on generally accepted international norms. However, it is clear that, in their making, they are not the result of true consultation with civil society conducted in a transparent and participatory manner as they do not address the cultural and socio-wellsprings of society, and therefore will remain an idealistic goal ever unattainable. In plain terms, the objectives are not the views of general society.
ii) Government responsibilities to foreign investors
These are poorly delineated, leaving the investor, should anything go wrong, at the mercy of the Arbitration Act, a process anyhow avoided by a Government Executive in which power remains highly centralized, where foreign investors are able to be deported under emergency powers introduced to deal with a state of emergency under a previous regime. There therefore needs to be introduced a special committee of the judiciary, set apart from the Executive, to deal with matters affecting investors who are targeted by corrupt elements.
iii) Government responsibility to local investors
Almost wholly absent, confusing investors as foreign investors, as shown in the section under incentives.
iv)Investors’ responsibilities to the workers
These are taken well care of under the Labour Act. However, market forces will require the issuing of suitable regulations from time to time. Flexibility is the watchword.
v)Investors’ responsibilities to the communities
These appear absent. Corporations should be required to adhere to a code of corporate responsibility. Beyond that, any legislation is problematic as the state should not dabble in such matters. In rural areas, the imposition of community development trusts as an umbrella to usher in development ‘greenfield’ partnerships will require appropriate legislation and regulations which result from proper consultations – currently a process much abused. The stakeholder workshop for the compilation of the 5th National Development Plan accepted the notion of ‘chiefs’ trusts: rather to be termed community development trusts so as to separate the powers of the chiefs from that of the community, but without damaging the traditional structures. What is required to be re-visited is the Natural Resources Act of 1962 which dealt with development in an holistic manner.
vi) The responsibility of the investors to the economy at large
These remain unclear and unstated

In general, Zambia has had an adequate legislative framework. However, it is in the area of the compilation and drafting of statutory instruments where there is considerable concern, regulations being drafted, checked by the Ministry of Justice and then peremptorily signed into law by Ministers without sight - or the participation of, civil society, thus creating the tyranny of the law. This process is not helped by the fact that Justice does not even have in stock the full list of SI’s, nor are they available at the Government Printer; and many bills remain unpublished. The law therefore remains a distant and intangible artefact to the common man, to the poor who are always with us. English Common Law and its equivalent, Customary law, remains the law of daily use. Zambian Statutory law remains therefore distant from those it is meant to serve. The expression of the law is therefore to provide the necessary framework for investors, both local and foreign, who may join together with the populace so as to attain – at the very least, the Millenium Development Goals (MDG). The MDG should be inculcated in the legal fabric. And the section on incentives: 56 and 65, require to be re-drafted so that a full menu of investor incentives is presented, the current two items being poorly thought out and not likely to attract the sort of investors required, as the current confusion of the Executive arm of Government confirms



I.P.A Manning
April, 2005.

A Landsafe investment partnership is made up of the local community and government, investors, and local and international NGOs. It is a sustainable business partnership of equals who share a common goal of integrating community development with that of biodiversity and land conservation. It is investment driven; and it does not take away customary land.

A Landsafe partnership may be registered as a trust company under the Companies Act CAP 388 of the Zambian Laws (limited by guarantee) or under the Land (Perpetual Succession ) Act (Cap. 186 of the Laws of Zambia) - non-profit, having as its trustees the chief (chairman of the headmen), the investor, a representatives of the main partner NGO, the Community Resource Board (dealing with wildlife interests) and the District Council (or a governmental organization in the case of protected areas such as ZAWA and the Forestry Department) in which the programme is being conducted, and other key stakeholders.

The chiefdoms cover more than 94% of the land in Zambia and contain a wealth of natural resources. Development has not come to these areas, and the opportunities for attaining food security and the raising of living standards are few in places where villages are scattered, lie far from Government services and from markets, and where crops are preyed upon by wildlife. The Government does not have the money or the capacity to deliver full development, and donor support merely ensures continued dependency on aid. The way forward is to encourage investment, but investment which comes in as a partner of communities, that supports the traditional structures and that does not take away the land.

Chiefs are empowered under the Lands Act No. 29 of 1995 to dispose of land for up to 99 years on leasehold tenure – provided Government agree. Driven by a need to generate income, chiefs are selling off land, removing it forever from the community. The Landsafe model ensures that land remains in the villagers’s control – except, in exceptional cases, perhaps for small areas needed for high-cost buildings. Chiefdoms also do not own the wildlife of their areas, this resource being held by Government and given out as yearly hunting quotas. In support of Government’s policy of de-centralization and devolution, the Wildlife Act of 1998 offers an opportunity for the community to obtain more powers over its own wildlife resources – one of its main opportunities for raising living standards and for wealth creation, giving as one of its main objectives ‘to facilitate the active participation of local communities in the management of the wildlife estate’. This Act, also allows for the recognition of Community Resource Boards (CRBs), which, representing the Zambia Wildlife Authority (ZAWA), may obtain and make use of game quotas and are responsible for the protection of wildlife and people (from wildlife – the original function of ZAWA’s predecessor organizations). However, CRBs are only empowered under the Wildlife Act, making the formation of Trusts – with responsibility for all natural resources, essential. Landsafe makes use of these two Acts – as well as the proposed Forest Act of 1999 and the National Biodiversity Strategy and Action Plan (NBSAP) – and the recent National Policy on Environment (May 2006), to lay the groundwork for the future development of customary land so as to conserve the biodiversity and, at the same time, to stimulate much needed rural development.

• The Customary Authority
The Authority i.e. the chiefs and their headmen, is, along with the investor, the co-director of the Trust responsible for the development of the area, lending to it his traditional powers and those enshrined under the Lands Act, ensuring that secure access to and use of the land is possible, and that the community benefits.
• The Community Resource Board
The CRB, being only empowered under the Wildlife Act, is there to assist in the sustained use of the wildlife resources for the benefit of the community – in particular in taking ownership of game quotas and for deploying and managing village scouts, protectors of the very resource which should be sustainably utilized. It is also the vehicle to serve the community by making applications, where feasible, for wildlife harvesting rights, as allowed under Part 3(3) of the Wildlife Act – a rarely invoked right.
• The Investor/manager
The role of the investor/manager is to provide the seed money to start the project, to recruit other investors, and perhaps to manage the development. For this to happen there has to be an incentive to do so, as well as the necessary protection and security of tenure for the investors. The manager will also have the crucial role of managing a conservation area (a conservancy), one containing scattered communities, and possibly endangered species and protected areas. This is an holistic development requiring experience in wildlife management, biodiversity protection, tourism development, artisanal and commercial agriculture, forest exploitation, community development and small business development.
• The NGOs
The NGOs act as umpires between managers and investors, the customary authority, the community based organizations (CBOs) and Government. They assist the scheme to grow, and lay the groundwork for long-term sustainability. Crucially, they are empowered to carry out community development, identifying projects through participatory rapid rural appraisal, developing project proposals, drawing on money built up in a trust fund, as well as accessing donor funds for micro-level development.

• It will create a business partnership between the community, Government and investors, expressed in the form of a trust company in which the chiefdom, the investor/manager, NGOs, CBOs and the District Councils are subscribers
• It will allow ‘use and occupancy’ (usufruct) of land – from which it will derive rentals – managed by the trust in a trust fund, to benefit the community and the biodiversity on which it depends
• It will help to empower the CBOs so that they are better able to conserve the natural resources of the chiefdom for the benefit of all concerned
• It will provide for sustainable agricultural and natural resource development
• It will improve livelihoods and, in comparative terms, create wealth
• It will provide food security
• It will provide a framework for sustainable donor involvement
• It will provide a model and framework for the delivery of true rural development, particularly in resource rich areas
• It will not alienate the land

Biological diversity (biodiversity): the variations in biological organisms at ecosystem, species and gene level

Authority over land held under customary tenureLandsafe

Investment Model
An integrated conservation and development model (symbolized by the traditional African chair) established within areas of customary tenure and associated protected areas, and carried out by a partnership between investors, customary authorities and government, and non-government organizations

A conserved area (not, necessarily, a game ranch)

Customary Area
Land held under customary tenure i.e. Open Areas and Game Management Areas

Customary Authority
The custodian of land held under customary tenure (chiefs and headmen)

Customary Tenure
Land held, through long tradition, by village headmen under the chairmanship of a chief (Appendix 4 of the Laws of Zambia)

The allocation of responsibilities for decision-making and operations to lower levels of government, community organizations, private sector, and NGOs

The transfer of power from a central to a subordinate level of organization, particularly from a central government to regional or local governments

A dynamic complex of plants, animal and micro-organism communities and their non-living environment interacting as a functional unit

Commonly hunted animal species specified under the Wildlife Act

The principle which makes for the origin and progress of wholes in the universe. It is not only creative but self-creative, and its final structures are far more holistic than its initial structures

Holistic Management.
The management of the whole

Hunting Concession
An area where authority to hunt within a specified hunting block has been given by ZAWA and the local community, to a company for a specified period of time

Land Alienation
The conversion of land from customary tenure to leasehold tenure: provisionary – 14
years; full title – 99 years (renewable)

Land tenure
The rights of individuals or groups over arable, grazing and residential land, how such rights are acquired, what they consist of, how they operate in the holding, transfer and inheritance of land and how they may be extinguished

Local Community
The resident ‘owners’ of customary land - including GMAs, other than owners of tourist and camp lodges or hunting concessions – who by virtue of their rights over land, invest in and should derive benefits from the sustainable utilization of the natural resources in their area; or as defined by ZAWA in the 2003 Safari Lease Agreement as ‘The total number of villages, their residents and traditional rulers within a Game Management Area

Natural Resources
Land and its biological resources: the soils, vegetation and the fauna

Open Areas
Customary land not included in GMAs

One who shares risks, losses and profits

Private game ranches
Fenced privately owned property (leasehold) (ZAWA: Draft Policy on Private Wildlife Estates)

State Land
Land which is not situated in a customary area (Lands Act 1995)

A set of chosen actions to support the achievement of a specified development goal

Sustainable Use
Use of an organism, ecosystem or other renewable resource at a rate within its capacity for renewal

Tenure System
Legal and institutional framework which determines the ways in which rights to natural resources (property rights) are defined and enforced

The principle of customary tenure whereby anyone can have access to and the use of a piece of land but cannot claim any form of ownership of it. The latter implies in English jurisprudence – from which Zambia’s laws are derived, title to the lands and full rights of management including the rights of alienation (ownership at law) but not necessarily possession or enjoyment of benefits which may belong to the owner at equity.