By Elias Munshya, LLM, MBA, M.DIV.
It is strange that ZCCM-IH went ex-parte to the Lusaka High Court to apply that Konkola Copper Mines (KCM) be placed under liquidation, or to be technically correct, under “provisional liquidation”. From the look of things, this Application and its resultant Order seems to have been obtained in the cover of the night. It is an integral part of the rule of law in Zambia and other common law systems that a judicial officer hears both sides of the story before deciding a case or before issuing an Order. It is only in minimal circumstances where a court may proceed to invoke an extraordinary remedy to grant Orders without hearing two sides to a dispute. Couldn’t the judge have asked where KCM was before he granted this ex-parte Order?
Democracy dies in the dark, and so does the rule of law. Those who undermine the rule of law, do so under cover of ambiguity and mostly under cover of secrecy. It is quite telling that the ex-parte Order appointing the provisional liquidator of KCM has the signature of the judge, without the name of the judge. The world does not know which of the 30 plus judges granted this Order that has liquidated one of Zambia’s biggest mining companies. While I cannot impute corruption in the way the judge’s name has been concealed on this Order, I find it fishy and honestly stinky.
An unnamed judge of the Lusaka High Court has granted Mr Milingo Lungu full powers of a liquidator even if the judge has used the terms “provisional”. This does not smell corruption and collusion; it stinks of severe corruption and foul collusion. The ex-parte Order has granted the provisional liquidator numerous powers. If this is a temporary ex-parte Order valid until there is an inter-partes hearing, how come it grants this provisional liquidator full powers of liquidation. It does not matter what you call the Order if its effect is that of a liquidator, it is a full liquidation order. There is nothing “provisional” about this Order. It is the substance of the Order that matters and not the title of the Order. It is the effect and the meaning of the text and paragraphs in the Order that matters.
We are quite concerned with the political connections of the court-appointed law firm and lawyer liquidating KCM. This law firm is owned by a senior leader of the ruling Patriotic Front party. As a lawyer myself, I always want to make it clear that lawyers are not their clients, and they should be free to represent whomever they want. However, this case is not just about a lawyer being retained by the politicians, but rather the lawyer themselves being ruling party functionaries. These lawyers are not just members of the PF carrying out their constitutionally protected freedoms of political association; they are politicians themselves. This begs the question, was there political interference in how the decision to liquidate KCM was made? If so, what role did the Patriotic Front play in ensuring that ZCCM-IH appointed the political party’s political functionaries? Further, how will the Patriotic Front party benefit from this liquidation? Will Mr Milingo Lungu pump a few thousand into the ruling Patriotic Front party from the money he will make?
We are reminded of a pattern that has emerged within the Lusaka High Court where high court judges have formed a habit of granting such ex-parte Orders to liquidate companies. We are also reminded that it is the same set of lawyers who are being appointed as liquidators of these businesses. These law firms are mostly connected to the Patriotic Front and are financiers of the ruling party. We cannot help but ask, is connection to the ruling party playing a part to these irregular ex-parte Orders liquidating companies?
The Law Association of Zambia cannot play ignorant regarding this simmering pattern of corruption in the judiciary. LAZ cannot for a moment, think that it is entirely okay for the high court to be routinely liquidating companies through ex-parte Orders. We agree that high court judges have much discretion. However, those who get corrupted are never corrupted because they lack the power or the discretion to do what they are doing. Corruption arises from the abuse of discretion, leaving a clear pattern of corruption and confusion. It is this pattern of corruption that has emerged within the Lusaka High Court. Sadly, it is a culture of secrecy and intimidation. Can’t the Law Association of Zambia see that such practice undermines the rule of law?
What started as an isolated incident with the liquidation of The Post Newspapers has now become routine practice – creditors pounce on a company, obtain an ex-parte Order appointing a “provisional liquidator” (who is mostly connected to the ruling PF), and then months and years pass by as the liquidator milks the companies with impunity. Lamasat was a victim of these mafia tendencies. It seems KCM has now succumbed to this cabal as well. Zambians are watching closely what the PF appointed mafias are going to do with the liquidated KCM. I would not be surprised if they loot whatever little was left of KCM and leave the workers in the cold. The PF party functionaries do not care about the assets of KCM or the workers of KCM. The PF is looking out for itself, and that is why it has created a pattern of corruption involving lawyers, and some of the judges at the Lusaka High Court. If the Zambian judiciary would now be howling for our blood for calling some of their judges corrupt. We have no better particulars than the shadowy conduct exhibited through these rampant ex-parte liquidation Orders. A merciless mafia seems to have been emboldened, but Zambians will resist it.
Munshya, E. (2019). The Mafia in Charge: Is there collusion to undermine the rule of law in KCM’s liquidation? Elias Munshya Blog (www.eliasmunshya.org) (Published May 22, 2019)