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Original Source: Lusaka Times

The Lusaka high court has upheld the stay of execution granted to six environmental organisations against government’s decision to allow the opening of a mining project in the Lower Zambezi National Park.

Elephants crossing the Chongwe River – a tributary of the Zambezi that borders the Lower Zambezi National Park © Sharon Gilbert-Rivett

This means that the Kangaluwi mining project would not commence until the final determination of the appeal to the court by the organisations.

The organisations are challenging the government’s decision on grounds that it was wrong in law and fact because it posed a danger on many people’s lives.

Judge Mubanga Kondolo said in upholding the decision yesterday that the damage to the environment that the project would cause was a matter of public concern and interest which affects all people born and unborn. Mr Justice Kondolo said that if he lifted the stay of execution which was granted to the organisations on February 18 2014, their appeal against the ministry of mines to allow the commencement of large scale mining in the national park would become nugatory and rendered academic.

He said that it would be rendered a mere academic exercise because the project entailed large scale mining which might seriously deface or otherwise affect the environment. Mr Justice Kondolo said there was no need for the organisations to specify or prove exactly how they were affected by the project as was argued by attorney general Mumba Malila because the consequences of damage could affect anyone.

“I shall not pronounce myself on the rest of the arguments of the parties save to state that a damage to the environment is a matter of public concern and interest which affects all people born and unborn. For this reason I find that the appellants do not need to specify or prove exactly how they are affected by the subject project” Mr Justice Kondolo said.

Mr Justice Kondolo further said that the stay of execution granted against the minister’s decision would not amount to an injunction against the state because it was not civil proceedings as contemplated by section 16 (2) of the State Proceedings Act. Mr Malila had in his request to have the stay of execution lifted submitted to the court that the stay was incompetent because it offended section 16 (2) of the State Proceedings Act. He said none of the six live within the Lower Zambezi National park and did not show to the court how they would be affected or the nature of injury that they would suffer.

But the organisations had urged the court to confirm the stay saying they would suffer loss that could not be atoned for in damages because environmental degradation affected everybody and that no amount of compensation could atone for the extinction of animals, pollution and others.

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