An Evaluation of the Zambian Regulatory Framework Governing Water Pollution Caused by Copper Mining

Abstract

The main focus of this paper is to evaluate the Zambian regulatory framework governing water pollution caused by copper mining. This evaluation is based on the legal and institutional framework in Zambia. The paper concentrates largely on interrogating the extent to which the principles of public participation and access to environmental information, access to justice, and the use of Economic Instruments (EI) or Market Based Instruments (MBIs) have been incorporated in the Zambian laws on environmental management and conservation and ultimately in water pollution control. The question investigated by this paper is whether the legal and institutional framework does in fact address or mitigate water pollution arising from mining, in particular, copper mining, keeping in mind the role that copper plays in Zambia' economy and the unusual characteristic of water as a natural resource. There is no doubt that the copper mining industry in Zambia poses a difficult paradox. On the one hand it is the backbone of the economy while on the other it is one of the largest contributors to water pollution. The situation is further complicated by the fact that there is no way mining can be undertaken without polluting waste being produced. This being the case it is imperative that the Zambian Government find both an economical and environmental balance, which balance will take into consideration inter-generational and intra-generational equity. To this effect, this paper suggests that this balance can be achieved by ensuring that there are not only adequate but effective laws enacted by the government of Zambia to address this situation. The main findings of this paper are:- • Whilst Zambia does have robust and forward looking environmental legislation in place, it is imperative that this is reflected in its constitution. The Constitutional protection of environmental rights can be a powerful and potentially trans formative step towards that elusive goal of ecological sustainability; • Market Based Instruments (MBIs) and environmental regulation could be used side by side, with the benefits of both being made available to a country. Moreover, whereas regulation offers no incentive for firms to reduce pollution below the ambient standard, MBIs like eco-taxes provide a constant incentive for polluters to reduce pollution further in order to reduce their tax bill; and • An aspect of capacity, enforcement and compliance of pollution control legislation is the role of effective and adequate public participation of various stakeholders found in communities affected by mining activities. However, when it comes to access to environmental justice, there has been little or no interest in public interest litigation. There has been only been one reported case undertaken involving water pollution. Based on these findings, among others, this paper has concluded that in order to show the importance of environmental issues, the right to a clean and safe environment should be enshrined in the Constitution of Zambia. The Zambian' regulatory framework is indeed robust but that there is also an urgent need to involve all stakeholders in ensuring that water pollution is checked. The regulatory framework can be complemented or supplemented with market based instruments, corporate social responsibility guidelines and an emphasis on incentives for pollution prevention as opposed to punishment, penalties and licenses to pollute.