Lungowe and Others v. KCM: an access to justice analysis in Zambia

E. Munshya, LLM, MBA, MDIV.

Chingola resident Dominic Liswaniso Lungowe and several other colleagues of his have sued both Konkola Copper Mines Plc (KCM) and Vedanta Resources Plc in the High Court of Justice, Queen’s Bench Division, Technology and Construction Court. This court’s equivalency in Zambia is the High Court of Zambia. For obvious reasons, both KCM and Vedanta objected to the plaintiffs’ decision to sue in London instead of Lusaka, Kitwe or Ndola high courts. KCM and Vedanta made an application before the London High Court to dismiss the action before it could even be heard. They hired lawyers in London and invited legal practitioners in Zambia to testify in London to show that the plaintiffs could in fact receive just as good a justice in Zambia as in London. The plaintiffs on the other hand, through their solicitors Leigh Day, argued that they could not receive justice in Zambia and the best venue for this suit was London. The plaintiffs too assembled their witnesses from Zambia to testify in London about how difficult it would be for them to access justice in Zambia. One of their star witnesses about the horrible legal situation in Zambia was Mr. Musa Mwenye SC, Zambia’s former attorney general and former president of the Law Association of Zambia.

Mr. Lungowe’s complaint is horrifying and yet his legal problem modest to understand. He is claiming that KCM and Vedanta poisoned his water and polluted the environment in Chingola. In May 2016, Mr. Justice Coulson issued his ruling on this preliminary matter. His decision, I think, has not received enough attention in Zambia. It must receive fair comment and analysis to help our people and our country understand how we can improve on the delivery of justice in Zambia. I am very encouraged by the efforts being made by Hon. Given Lubinda, the minister of justice, about reforms that Zambia must implement to increase access to justice. In fact, the Law Association of Zambia itself has made “access to justice” a very important issue in its strategic plan and vision. LAZ’s first female president has pointed out severally the importance of access to justice. The Lungowe decision will help us see just how we can do that. The full decision can be found at the following website http://www.bailii.org/ew/cases/EWHC/TCC/2016/975.html.

First, access to justice in Zambia can be impended by the Zambian bar’s decision to ban Contingency Fee Agreements (CFA). In Zambia, a person who needs a lawyer must either pay for one or find someone who can do it pro-bono. Zambia does not allow special arrangements like CFAs where a lawyer gets paid from a settlement or judgment after winning the case. Particularly, in injury and pollution cases such as Lungowe’s, having CFAs in place would make it easier for claimants to seek legal advice from those lawyers who are willing to put in their time now for a payment to come later. It is agreeable that CFAs cannot apply to all kinds of legal suits, but can certainly apply to some.

A claimant who does not have enough money to pay for a case upfront can still have access to justice on this basis. Leigh Day, the solicitor firm representing Lungowe and others is doing so on a contingency fee agreement basis. Through this way, it has made it easier for Mr. Lungowe to have the best legal representation without the need to advance huge sums of Kwachas. To maximize access to justice in Zambia, both the Law Association of Zambia Act and the Legal Practitioners Act must be reformed to allow creative ways of paying for justice (read, lawyers).

Second, in keeping with common knowledge, lawyers cost a lot of money. In Alberta, there is saying among lawyers that not even lawyers can afford to hire themselves. As can be seen from what just happened this week in Lusaka when the Law Association of Zambia (LAZ) decided to hire a lawyer (Mr. Musa Mwenye, SC) to represent accused lawyer Nchito, even the most prolific of legal minds in Zambia, still need a little help and assistance to afford a lawyer. While this challenge is real in Zambia and elsewhere, allowing CFAs particularly in civil litigation will help make it easier for people to access justice. May be by the message of fate, the same Mr. Mwenye who told the London court that Lungowe will not receive justice in Zambia, is the same one LAZ has hired to represent the accused Mr. Nchito in the Lusaka magistrate court.

Third, Mr. Justice Coulson confronted the big elephant in the room, or is it, in the corners of Zambia. This is a complete quote from Coulson, J.:

“…the legal system in Zambia is not well developed: indeed, in 2012 Zambia was the subject of a report by the Bureau for Institutional Reform and Democracy which highlighted the dearth of lawyers in Zambia, and the consequences for its citizens” (para. 176).

Elias Munshya NewLet me paraphrase – the small number of legal practitioners in Zambia, gives the nation an undeveloped legal system and this has dire access to justice consequences for its citizens, like Lungowe, and yes like lawyer Nchito too. Zambian citizens do not have adequate access to justice because Zambia has too few lawyers! We have been saying this for a very long time and absolutely nothing seems to change – we are still at about 1,000 active lawyers. The Chief Justice always talks about access to justice, and so does the minister of justice, and so does the LAZ president, and so does Mr. Likando Kalaluka SC, and so does Bo Edgar Lungu, and so did Bo Justice Coulson. But nothing changes because talking about access to justice is meaningless unless you make real changes. Talk is cheap. Zambia cannot continue treading this path; it needs to increase the supply of lawyers. Fifty years after independence, a judge from a former colonial master should have no opportunity to say what Coulson said. But he said what he said because the lack of lawyers in Zambia doesn’t make Zambia sophisticated, it makes Zambia appear legally undeveloped and disorganized. Zambians need easier access to justice and it is impossible to have access in a country where we have 1 lawyer for every 20,000 to 25,000 people. Chingola where Mr. Lungowe and his friends live is a town with about 200,000 people and, as justice Coulson observed, 4 lawyers.

Need I say more?

I am not resting my case.

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