table of contents - law reform commission of … reform alraesa... · table of contents list of ......

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TABLE OF CONTENTSLIST OF ABBREVIATIONS ...............................................................................vi

INTRODUCTORY REMARKS ......................................................................... viii

ACKNOWLEDGMENT ....................................................................................xi

1.0 ECONOMIC INTEGRATION IN AFRICA: A CASE STUDY FOR SADC AND COMESA ............................................................................................ 1

1.1 Introduction ...................................................................................... 1

1.2 What is Economic Integration? ......................................................... 2

1.3 Chain Stages of Economic Integration ............................................... 2

1.3.1 Stage 1: Preferential Trading Area (PTA) ................................ 2

1.3.2 Stage 2: Free Trade Area (FTA) ............................................... 2

1.3.3 Stage 3: Customs Union (CU) ................................................. 3

1.3.4 Stage 4: Common Market (CM) ............................................. 3

1.3.5 Stage 5: Economic and Monetary Union (EMU) ..................... 4

1.4 Economic Integration within SADC and COMESA .............................. 6

1.4.1 COMESA ................................................................................. 7

1.4.2 SADC....................................................................................... 8

1.5 Institutions ........................................................................................ 9

1.6 Challenges ....................................................................................... 10

1.6.1 Overlapping Membership .................................................... 10

1.6.2 Poor Private Sector Participation ......................................... 10

1.6.3 Political Issue: Loss of Sovereignty and Lack of Political Commitment ............................................................................... 11

1.6.4 Implementation Problems of Harmonization Policies .......... 11

1.6.5 Dependence on Colonial Powers ......................................... 11

1.6.6 Institutional Weaknesses ..................................................... 11

1.6.7 Weak States, Wars and Conflicts .......................................... 12

1.7 Conclusion ....................................................................................... 12

2.0 PREVALENCE OF FUNCTIONAL ILLITERACY IN THE MOTHER ONGUE: IS SOCIO-ECONOMIC DEVELOPMENT VIA INDIGENOUS AFRICAN LANGUAGES ATTAINABLE IN CONTEMPORARY AFRICAN

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SOCIETIES? ...................................................................................... 12

2.1 Introductory Remarks ..................................................................... 13

2.1.1 Backdrop .............................................................................. 13

2.1.2 The Practical (or implementation) Level .............................. 13

2.1.3 Conclusion: The Challenge .................................................. 14

2.2 Backdrop ......................................................................................... 14

2.2.1 The Policy Level .................................................................... 14

2.2.2 The Scholarly Scene ............................................................. 17

2.3 FACTORS THAT MAY BE SUGGESTED AS MILITATING AGAINST THE UTILIZATION OF INDIGENOUS AFRICAN LANGUAGES FOR ATTAINING SUSTAINABLE SOCIO-ECONOMIC DEVELOPMENT IN AFRICAN COUNTRIES ..................................................................................... 20

2.3.1 Preliminary Remarks ............................................................ 20

2.3.2 “Westernization” of the minds of the African peoples ........ 21

2.3.3 Prevalence of functional illiteracy in the mother tongue (i.e. in indigenous African languages generally) ................................. 22

2.4 The Challenge .................................................................................. 26

2.5 Conclusion ....................................................................................... 26

3.0 THE SMALL CLAIMS COURTS OF ZAMBIA ........................................ 28

3.1 Introduction .................................................................................... 28

3.2 Governing Statute ........................................................................... 28

3.3 Short Comings in the Act ................................................................. 30

3.3.1 The Presiding Officers .......................................................... 30

3.3.2 Jurisdictional Limit ............................................................... 31

3.3.3 Procedure to be Adopted in the Courts ............................... 32

3.3.4 Effect of an Award ................................................................ 32

3.3.5 Enforcement of Awards ....................................................... 32

3.4 Measures Put in Place by The Judiciary for the Establishment of Small Claims Court .......................................................................... 32

3.4.1 Amendments to the Act ....................................................... 33

3.4.2 Training of Commissioners and other Court Officers ........... 34

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3.4.3 Administrative Support ........................................................ 34

3.5 Conclusion ....................................................................................... 35

4.0 LAW REFORM AND ECONOMIC DEVELOPMENT: INVESTMENT LEGISLATION ................................................................................... 35

4.1 Introduction .................................................................................... 35

4.2 Investment Environment ................................................................. 36

4.3 Legal and Institutional Framework Regulating Investments ........... 37

4.3.1 The Anatomy of Zambia Development Agency Act ............ 37

4.3.1.1 Silent Features of the Act ................................................... 38

4.3.1.2 The Creation of the Zambia Development Agency ............ 38

4.3.1.3 The Creation of Multi-Facility Zones .................................. 39

4.3.1.4 The Creation of Trade and Industrial Development Fund and

the Privatisation ................................................................. 40

4.3.1.5 Entry And Establishment of FDI ......................................... 40

4.3.1.6 Incentives and Support Services Offered ........................... 41

4.3.1.7 Other Major Provisions in the ZDA Act .............................. 43

4.3.1.8 Critique of the ZDA ............................................................ 43

4.3.1.9 Weaknesses ....................................................................... 44

4.4 Tax Regime and Tax Incentives ........................................................ 45

4.4.1 Tax Rates for Business Income (Corporate Tax, Royalty and

Withholding Tax) .................................................................. 46

4.4.2 Customs Duty ....................................................................... 46

4.4.3 Value Added Tax (VAT) ........................................................ 46

4.4.4 General Incentives ............................................................... 46

4.5 The Problem of Enacting Neo Liberal Investment Legislation ......... 49

4.6 Labour Law and Regulations ........................................................... 49

4.7 The Judicial System ......................................................................... 51

4.8 Conclusion ....................................................................................... 51

5.0 REVIEW OF THE COMPETITION AND FAIR TRADING ACT CAP 417 OF THE LAWS OF ZAMBIA: MAKING ENFORCEMENT MORE EFFECTIVE ....................................................................................... 54

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5.1 Introduction .................................................................................... 54

5.2 Problem Statement ......................................................................... 56

5.3 Institutional Arrangements ............................................................. 57

5.3.1 Appointing Authority ........................................................... 57

5.3.2 Decision Making Process ...................................................... 58

5.3.3 Funding ................................................................................ 58

5.3.4 Comparative Statutes ........................................................... 59

5.3.5 Recommendations on Institutional Framework ................... 59

5.4 Provisions of the Act ....................................................................... 60

5.4.1 Major elements of Competition Law (Legal Provisions

against Restrictive Business Practices) ................................. 61

5.4.2 Restrictive Business Practices .............................................. 61

5.4.3 Dominance ........................................................................... 63

5.4.4 Mergers, Takeovers and Acquisitions ................................... 67

5.4.5 Horizontal Agreements or Cartels ........................................ 69

5.4.6 Trade Practices by Associations ........................................... 71

5.4.7 Consumer Welfare ............................................................... 71

5.5 Conclusions ..................................................................................... 72

6.0 INTELLECTUAL PROPERTY LAW ....................................................... 73

6.1 Introduction .................................................................................... 73

6.2 What is Intellectual Property? ......................................................... 75

6.2.1 Intellectual Property as “Property”...................................... 75

6.3 Branches of Intellectual Property .................................................... 76

6.3.1 Copyright and Related (Neighbouring) Rights ...................... 77

6.3.1.1 Copyright............................................................................. 77

6.3.1.2 Justification for Copyright Protection ................................ 78

6.3.1.3 Related Rights .................................................................... 81

6.3.1.4 Industrial Rights ................................................................. 82

6.3.1.5 Patents ............................................................................... 82

6.3.1.6 Industrial Designs ............................................................... 86

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6.3.1.7 Trademarks ........................................................................ 87

6.1.3.8 Justification Trademark Protection .................................... 89

6.4 Other Types of Trademarks ............................................................. 90

6.4.1 Service Marks ....................................................................... 90

6.4.2 Collective Marks ................................................................... 91

6.4.3 Certification Marks ............................................................... 91

6.4.4 Well-known Marks ............................................................... 92

6.4.4.1 Trade Names ........................................................................ 93

6.4.4.2 Passing off ............................................................................ 93

6.4.4.3 Geographical Indications ...................................................... 94

6.4.4.4 Trade Secrets ........................................................................ 95

6.5 Protection Against Unfair Competition ........................................... 95

6.6 Dealings in Intellectual Property ..................................................... 96

6.7 Enforcement of Intellectual Property Rights ................................... 97

6.7.1 Comparison of Various Enforcement Measures .................. 98

6.8 International Framework of Intellectual Property .......................... 99

6.9 Challenges of Intellectual Property Law .......................................... 99

6.10 Way Forward/Conclusion .............................................................. 100

REFERENCES.............................. ............................................................... 102

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LIST OF ABBREVIATIONS

ACP: AfricanCaribbeanandPacificALRAESA: Association of Law Reform Agencies of Eastern and

Southern AfricaANCOM: Andean Common MarketAPEC: Asia–PacificEconomicCooperationASEAN: Association of South East Asian NationsAU: African UnionCACM: Central American Common MarketCARICOM: Caribbean Community and Common Market (Caribbean Community)CFI: Court of First InstanceCNMC: ChinaNon-FerrousMetalCompanyCOMESA: Common Market for Eastern and Southern AfricaCU: Customs UnionDGComp: DirectorateGeneralCompetitionEAC: East Africa CommunityECA: Economic Commission for AfricaEC: EuropeanCommissionECJ: EuropeanCourtofJusticeECMR: EuropeanCommunityMergerRegulationsECOWAS: Economic Community of West African States EU: EuropeanUnionFDI: Foreign Direct InvestmentFTA: Free Trade AreaIP: IntellectualPropertyIPR: IntellectualPropertyRightJICA: JapaneseInternationalCorporationAgencyLAIA: Latin America Integration AssociationMFEZs: Multi – Facility Economic ZonesNAFTA: North America Free Trade AssociationOAU: Organization of African Unit

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PTA: Preferential Trade AreaR&D: ResearchandDevelopmentSACU: South Africa Custom UnionSADC: SouthernAfricanDevelopmentCommunityTRAIP: TradeRelatedAspectsofIntellectualPropertyVAT: Value Added TaxWIPO: WorldIntellectualPropertyOrganizationWTO: World Trade OrganizationZCC: ZambiaCompetitionCommissionZDA: ZambiaDevelopmentActZDA: ZambiaDevelopmentAgencyActZRA: Zambia Revenue Authority

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INTRODUCTORY REMARKS

This isanopportune timefor theAssociationofLawReformAgenciesofEasternandSouthernAfrica(ALRAESA)tocomeupwithitsownjournal.Theprimarygoalofthisjournalwillbetofacilitatetheexchangeandsharingof ideasonbestpractices in law reformanddevelopmentof lawamongstALRAESAmemberagencies.Tosetthisfirstjournalrolling,authorsfromwithintheregionhavepreparedarticlescoveringdifferentmattersofcurrentimportancetotheregion.

GEORGEMPUNDUKANJAisapart-timeLecturerattheSchoolofLaw,UniversityofZambia.ThisauthorhasundertakenacasestudyoftheSADCandCOMESA as vehicles for economic integration inAfrica. The author traces the long history of initiatives for economic integration for Africa from the establishment of the South Africa Customs Union (SACU) in 1910 and the EastAfricaCommunity(EAC)in1919rightuptothepresentdaywithregionaleconomicgroupingsliketheCOMESA,SADC,ECOWAS,SACUandtheEAC.Theauthortakesitsreadersthroughasix-stageprocessunderwhicheconomic integration passes to completion. These stages are- PreferentialTradingArea(PTA),FreeTradeArea(PTA),CustomsUnion(CU),CommonMarket(CM),EconomicandMonetaryUnion(EMU).ThispaperconcludesbypointingoutthatAfricancountries’economiesandpopulationaresmalltoassertanyseriousinfluenceontheworldtrade,andhenceneedinstitutionssuch as SADC and COMESA to advance not only their regional trade agenda butalsogetastakeintheworldeconomy.

In a paper titled PREVALENCE OF FUNCTIONAL ILLITERACY IN THE MOTHER TONGUE a question is asked whether socio-economic developmentthroughthemediumofindigenousAfricanlanguagesisattainable in contemporaryAfrican societies. In thispaperProfessorMUBANGAE.KASHOKI shareswithus a tentativeoutlineof theobstacles,orpracticaldifficulties thatmaymilitateagainst theeffectiveutilizationof indigenousAfrican languages for purposes of promoting sustainable socio-economicdevelopment inAfrica.At policy level, the author highlights the need forAfricatoconsiderplacingindigenousAfricanlanguagesatthecentreofitspeoples’socio-economicdevelopment.

Professor Kashoki tackles head-on the westernization of the minds of the Africanpeoplesalong-termresultofcolonizationoftheAfricancontinentthathasledtothealterationinafundamentalmannerofthesocio-culturalsystems,

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particularlytheindigenoussystemsofeducationandgeneralprevalenceoffunctional illiteracy in indigenousAfrican languages generally.The paperconcludes by suggesting what is to be done if ‘Law Reform and Economic Development’istobeachievedviatherouteofutilizingindigenousAfricanlanguagesinthefuture.

NIGELKALONDEMUTUNA(ADVOCATE)inapapertitled“TheSmallClaimsCourtsinZambia”highlightsthestepsthathavebeentakenbytheZambianjudiciaryinitsquesttosetuptheSmallClaimsCourtsinZambia.TheauthorconcludeswithagreathopethatoncetheseSmallClaimsCourtsareestablished,citizenswillhavegreateraccess to justiceandwill indeedbeempoweredandinthatway, theywillhavecontrolof theirdestinyandquickerrealisationoftheirclaims.Thisdevelopmentwillalsohelpdecongestthe other Courts freeing then to concentrate on more deserving and serious issues.

The principal law regulating and promoting investments inZambia is theZambiaDevelopmentAgencyActwhichcameintoforceon7thJuly2006.HON. MR, JUSTICE PHILLIP MUSONDA surveys this law and underscorestheimportanceofinvestmenttobeakeycontributortoeconomicgrowth and development of any country. Investment brings in the muchneededcapital,technologyandmanagementknow-howthatenhancesaccesstonewmarkets.Amajorpartofthispaperisdedicatedtotheanalysisoftheprincipal law regulating investments, looking at the investmentpromotionmeasures provided, incentives offered, the implementing authority anddisputesettlement.Thepaperalsodiscussesthetaxregime,labourlawsandthejudicialsystemoftheRepublicofZambia.

CHULUFYA SAMPA, the DirectorMergers andAcquisitions in Zambia,discussestheCompetitionandFairTradingAct,Cap.417whichwasenactedin 1994 and three years later, the Zambia Competition Commission wasestablished.Theroleofthecompetitionlawandpolicywastoprovidestrongincentivesforachievingenterprisedevelopment throughenhancingmarketaccessfornewinvestors,protectionofeconomyfromrestrictive businesspracticesandfinally,tofostereconomicefficiencyandconsumerwelfare.

In his paper titled “Reviewing of the Competition and Fair TradingAct;MakingEnforcementMoreEffective”,hehighlightsproblemspertainingtotheimplementationoftheActaftertenyearsofitsenactment.Theproblemsdiscussedarethoserelatedtoappointingauthority,decisionmakingprocess,funding, institutional framework, restrictive business practices, consumer

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welfareandcomparativestatutes.Theauthorconcludesbyhighlightingareasthat may require strengthening or amendment so as to make its enforcement moreeffective.

The Author GEORGE MPUNDU KANJA (Advocate - Zambia and A Lecturer School of Law University of Zambia) discusses Laws on Intellectual Propertyandhoweveryactivityinourdailylivesisinonewayoranotheraffected by Intellectual Property. Intellectual Property covers ideas,inventions, technologies, artworks,music and literature that are intangiblewhenfirst createdandbecomevaluable in tangible formasproducts.TheAuthorexamines thedefinitionof theIntellectualProperty, the three typesof properties (Moveable things, Immoveable Property/Real Property andIntellectualProperty)andbranchesofIntellectualProperties(copyrightsandrelatedRightsandIndustrialProperty).TheAuthorhighlightsthejustificationsfor the protection of copyright. For the property to be protected, it mustbenew,mustshowaninventivestepsanditmustbecapableofIndustrialapplication/usefulness.Onthewayforward,theauthorunderscoresthevalueofgeneralawarenessofIntellectualProperty.

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ACKNOWLEDGMENT

The Law Reform Commission of Tanzania acknowledges the contributions of theEditorialTeamwhichwasleadbyHon.JudgeProf.IbrahimJumafortheirtirelessworkinensuringthatthefirstissueofALRAESAJournalispublished.TheEditorialTeamhasdoneacommendableworkandproducedaJournalwhichcomprisesofsixarticlesfrominternationallyknownresearchers.

Likewise, the LawReformCommission of Tanzaniawishes to extend itsappreciationtotheChairmanofALRAESA,Mr.KathurimaMinotfromtheKenya Law Reform Commission for allowing the Law Reform Commission ofTanzaniatoworkoneditoriallogisticsofthepaperswhichwerepresentedduringthe4thALRAESAConferenceheldinLivingstone,ZambiainApril,2008.

Further, the Law Reform Commission of Tanzania wishes to thank thefollowing writers/researchers who have devoted their enormous time inwritingthearticles;Hon.JusticePhillipMusonda,Prof.MubangaKashoki,Mr.ChilufyaSampa,Mr.MpunduKanja andMr.NigelKalonda,withouttheirwork this very important journal ofALRAESAcould have not beenpossible.

Last but not least the Law Reform Commission of Tanzania sincerely thanks the Law Reform Commission of Zambia for their requisite support byprovidingtheLawReformCommissionofTanzaniawithsoftcopiesofthepaperspresentedinthemeetinginensuringthatthisALRAESAJournalisissuedtimely.

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1.0 ECONOMIC INTEGRATION IN AFRICA: A CASE STUDY FOR SADC AND COMESA

1.1 Introduction

Every continental region has at least one major integration movement. Europe the European Union/community; Asia has the Association of South East Asian Nations (ASEAN) and the Asia-Pacific Economic Cooperation (APEC); North America has the North America Free Trade Agreement (NAFTA); Latin America has the Latin America Integration Association (LAIA) and the Andean Common Market (ANCOM) the Caribbean has the Caribbean Community and Common Market or simply the Caribbean Community (CARICOM); the Middle East has the Council of Arab Economic Unity (CAEU); Central America has the Central American Common Market; and finally, Africa has three major integration movements namely Southern African Development Community (SADC); Common Market for Eastern and Southern Africa (COMESA); and the Economic Community of West African States (ECOWAS). These regional economic groupings or blocs have the common goals of economic transformation and development as well as deepening economic integration within their respective regions.

In Africa regional integration initiatives have a long history, dating back to the establishment of the South Africa Customs Union (SACU) in 1910 and the East Africa Community (EAC) in 1919. Since then a number of regional economic communities have been formed across the continent, particularly from the 1970s. Currently there are over ten or so regional economic groupings in Africa - COMESA, SADC, ECOWAS, SACU. EAC, etc. Today there is no country in Africa that is not a member of at least one regional economic group. As reflected in the number of regional agreements both on the continent and the rest of the world, the issue of economic integration has been at the centre stage of almost every country’s economic agenda. Countries are looking to regional integration as means of enhancing their competitiveness and take a stake in the global economy or international trade in the 21st Century.

This paper examines two regional economic groupings namely SADC and COMESA and the role they have played in regional integration in

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the Southern and Eastern Africa. Accordingly, the paper first discusses the historical background and structure of the two organizations, SADC and COMESA. It then analyses the progress the two institutions have made in economic integration and the challenges they face and their future prospects in deepening economic integration.

1.2 What is Economic Integration?

Economic integration is a term which is used to describe how different aspects between economies of different countries are integrated. The basics of this theory were written by the Hungarian Economist Bela Balassa in the 1960s. As economic integration increases, the barriers of trade between countries’ markets diminish. The best example of integrated economy today is that of the European Union and its euro zone. Economic integration has chain process which can be categorized into six stages namely:

1.3 Chain Stages of Economic Integration

1.3.1 Stage 1: Preferential Trading Area (PTA)

A Preferential Trade Area is a trading bloc which gives preferential access to certain products from certain countries. This is done by reducing tariffs, but does not abolish them completely. An example of a PTA is one formed or existing between the European Union and African Caribbean and Pacific (ACP) namely Coutinou Agreement under which the EU allows certain products such as sugar, bananas from ACP into the EU duty free. PTA is established through a Trade Pact. The PTA is the weakest form of economic integration.

1.3.2 Stage 2: Free Trade Area (FTA)

A Free Trade Area is a designated group of countries that have agreed to eliminate tariffs, quotas and preferences on most, if not all, goods between them. It can be considered to be the second stage of economic integration. Countries choose this kind of economic integration form, if their economical structures are complementary. If they are competitive, they will choose customs union. Unlike a

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customs union, members of the FTA do not have the same policies with respect to non-members, meaning different quotas and customs. To avoid evasion through re-exportation the countries use the system of certification of origin, most commonly called rules of origin (e.g. SADC, COMESA Rules of Origin). Where there is a requirement for the minimum extent of local material inputs and local transformations adding value to the goods. Goods that do not cover these minimum requirements are not entitled for the special treatment envisioned in the FTA area provisions.

The FTA is a result of a PTA, a form of trade pact, between two or more countries. The aim of the FTA is to reduce barriers to easy exchange that trade can grow as a result of specialization, division of labour, and most importantly through the theory and practice of comparative advantage. The theory of comparative advantage argues that in an unrestricted market place each source of production will tend to specialize in that activity where it has comparative, rather than absolute advantage.

1.3.3 Stage 3: Customs Union (CU)

A custom union is a free trade area with a common external tariff. The participant countries set up common external trade policy, but in some cases they use different import quotas. In short a common market establishes free trade in goods and services; it sets common external tariffs among members and also allows for the free mobility of capital and labour across countries. Common competition policy is also helpful to avoid competition deficiency. The purpose for establishing a customs union normally includes increasing economic efficiency and establishing closer political and cultural ties between the member countries. It is the third stage of economic integration. Customs Union is established through trade pact. Examples of customs unions include Southern Africa Customs Union (SACU), and East Africa Community. The proposed customs unions include customs union of COMESA which was due in 2008, and customs union of SADC due in 2010.

1.3.4 Stage 4: Common Market (CM)

A common market also sometimes referred to as a single market is a customs union with common policies on product regulation and freedom of movement of all the three factors of production namely

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land, capital and labour, and of enterprise. The goal is that movement of capital, labour, goods, and services between the members is as easy as within them. The parties are geared towards removing the physical (borders), technical (standards) and fiscal (taxes) barriers among the member states. These barriers obstruct the freedom of movement of the four factors of production. To remove these barriers the member states need political will and they have to formulate common economic policies. SADC proposes to be a common market by 2012.

A common market has many benefits;- the central benefit being an increase in the division of labour which leads to a rise in productivity. Also, with full freedom of movement for all the factors of production between the member countries, the factors of production become more efficiently allocated, thereby further increasing productivity. For both business within the market and consumers, a single market is a very competitive environment, turning the existence of monopolies more difficult. This means that inefficient companies will suffer a loss of market share and may have to close down. However, efficient firms can benefit from economies of scale, increased competitiveness and lower costs, as well as expect profitability to be a result. Consumers also benefit from the common market in the sense that the competitive environment brings cheaper products, more efficient providers of products and also increased choice of products.

Nonetheless transition to a single market may have short term negative impact on some sectors of a national economy because of increased international competition. Thus enterprises that previously enjoyed national market protection and national subsidy and could therefore continue in business despite failing short of international performance benchmarks, may struggle to survive against their more efficient competitors, even for its traditional markets. Ultimately, if the enterprise fails to improve its organization and methods, it will fail resulting in unemployment.

1.3.5 Stage 5: Economic and Monetary Union (EMU)

A monetary union is a situation where several countries have agreed to share a single currency known as unitary or common currency, among them. This involves the formation of a central monetary authority which will determine monetary policy for the entire group. A monetary union differs from an economic and monetary union,

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where it is not just currency but also economic policy that is pooled or co-coordinated as is the case in the EU Eurozone. An economic and monetary union is a single market with a common currency. It is to be distinguished from a mere currency union which does not involve a single market.

A good example of an economic and monetary union is the United States. Each US state has its own government which sets policies and laws for its own residents. However, each state cedes control, to some extent, over foreign policy, agricultural policy, welfare policy, and monetary policy to the federal government. Goods, services, labour and capital can all move freely, without restrictions among the US states and the Nations sets a common external trade policy. EMU is established through the currency-related trade pact. The largest economic and monetary union at present is the Eurozone. The proposed EMU includes SADC due in 2016, EAC due in 2009.

Why Economic Integration?

Economic integration for African countries has been necessitated by a number of factors which include the following:

(i) Many African countries are relatively small with small populations, economies and products that are not globally oriented;

(ii) Most African countries are largely suppliers of raw materials thereby making them uncompetitive to the rest of the world;

(iii) Intra-regional trade in Africa as a share of total foreign trade has traditionally been low compared to other regions. Thus in order to increase its share and influence in the foreign trade Africa needs to strengthen its regional groupings so as to deepen economic integration.

(iv) The world economy is dominated by regional economic groups such as the EU, and NAFTA, and as such African countries cannot expect to compete and develop individually without belonging to economic groupings.

(v) The requirements by Africa’s regional trading partners such as the EU to only negotiate new trade arrangements with Africa through regional groupings. A good example is the trade negotiations going on between EU and ACP under which the EU is proposing new arrangement (EPAs)

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of doing trade with Africa by demanding that African countries will negotiate with EU as a regional bloc.

The case for regional integration and economic cooperation in Africa has also been made and backed by various organizations both inside and outside Africa. In 1993 the then UN Secretary General Boutros Boutros-Ghali stated as follows:

“...regional cooperation and integration was one of the key areas for the future development of Africa. Regional markets can provide export alternatives for local producers. Regional projects can help to rationalize the use of resources and talent. Through regional alliances, African countries can give themselves the means to negotiate more favourable terms with their international counterparts... Regional economic cooperation does not happen without great effort and great planning.”

Likewise in 1994 the World Bank’s Africa Region Vice President Edward V. K. Jaycox stated as follows:

“The countries of southern Africa will not develop to their potential if they are not economically integrated. Economic integration would expand markets and employment opportunities, allow more efficient investment, promote the diffusion of technology and attract foreign investment. The elimination of trade barriers between countries in southern Africa could double the volume of trade in the region. Economic integration is the key to creating the kind of competitive environment that promotes innovation and would expand the ranks of the region’s entrepreneurs.”

1.4 Economic Integration within SADC and COMESA

The object of economic integration in eastern and southern Africa, like in any regional arrangement, is to foster economic development. This is the philosophy pursued by both SADC and COMESA. The origins of both SADC and COMESA can be traced to Lusaka, Zambia which hosted the first UNECA ministerial meeting in 1965 of the then newly independent States of Eastern and Southern Africa. The meeting was called to consider proposals for the establishment of a mechanism to promote sub-regional economic integration. The meeting recommended the creation of an Economic Community of Eastern and Southern African States. In 1978, Lusaka again hosted a meeting of ministers which recommended the establishment of sub-

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regional Preferential Trade Area. The PTA, later to become COMESA, was consequently established in 1981 and all States in Southern Africa, with the exception of Botswana, were members of the PTA and subsequently COMESA.SADC evolved from the Southern Africa Development Co-ordination Conference (SADCC) whose initial objective was to mitigate any adverse economic effects of apartheid South Africa on Frontline States. SADCC was also set up as an instrument of reducing dependence on apartheid South Africa. SADC was established in 1980 under the auspices of the Lusaka Declaration.

1.4.1 COMESA

Historically, COMESA was established as an economic integration block focusing on trade and investment issues in the region. It chose the traditional economic integration path of a Preferential Trade Area, Free Trade Area, Customs Union, Common Market and Economic Union as a solution to the small and fragmented national markets. This would entail market integration and trade liberation and facilitation, investment facilitation and promotion coupled with programmes in industrial development, scientific and technological advancement and human resource development. COMESA has already attained and largely gone passed the first stage -the PTA - and now is in its second stage of integration known as the Free Trade Area.

COMESA has twenty two members, namely;- Angola, Botswana, Democratic Republic of Congo, Kenya, Ethiopia, Rwanda, Burundi, Lesotho, Madagascar, Malawi, Mauritius, Mozambique, Namibia, Swaziland, Sudan, Zambia and Zimbabwe.

COMESA has evolved a comprehensive decision making structures at the top of which are the Heads of State of Member countries. There is then a Council of Ministers responsible for policy making, 12 technical committees and a series of other advisory bodies. Overall co-ordination is achieved through the COMESA Secretariat based in Lusaka, Zambia.

COMESA has also created several institutions to promote sub-regional co-operation and development. These institutions include;- the COMESA Trade and Development Bank based in Nairobi, Kenya; COMESA Clearing House, COMESA Association of Commercial

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Banks; COMESA Leather Institute; and COMESA Re-Insurance Company. In addition a Court of Justice was established under the COMESA Treaty and has become operational.

1.4.2 SADC

The SADC has been in existence since 1980, when it was formed as a loose alliance of nine majority-ruled States in Southern Africa known as the Southern African Development Coordination Conference (SADCC), with the main aim of coordinating development projects in order to lessen economic dependence on the then apartheid South Africa. The founding Member States are: Angola, Botswana, Lesotho, Malawi, Mozambique, Swaziland, Tanzania, Zambia and Zimbabwe. SADCC was formed in Lusaka, Zambia on April 1, 1980, following the adoption of the Lusaka Declaration -Southern Africa: Towards Economic Liberation. SADCC was formed with four principal objectives, namely:

(i) To reduce Member States dependence, particularly, but not only, on apartheid South Africa

(ii) To implement programmes and projects with national and regional impact;

(iii) To mobilize Member States’ resources, in quest for collective self-reliance; and

(iv) To secure international understanding and support.

On August 17, 1992 SADCC was transformed into SADC in Windhoek, Namibia when the Declaration and Treaty was signed at the Summit of Heads of State and Government thereby giving the organization a legal character. The members are Angola, Botswana, Democratic Republic of Congo, Lesotho, Madagascar, Malawi, Mauritius, Mozambique, Namibia, South Africa, Swaziland, Tanzania, Zambia and Zimbabwe.SADC and its member States are guided and act according to the following principles:(i) Sovereign equality of all member States;(ii) Solidarity, peace and security;(iii) Human rights, democracy, and the rule of law;(iv) Equality, balance and mutual benefit;(v) Peaceful settlement of disputes

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The objectives of SADC are to:

(i) Achieve development and economic growth, alleviate poverty, enhance the standard and quality of life of the people of Southern Africa and support the socially disadvantaged through regional integration;

(ii) Evolve common political values, systems and institutions;(iii) Promote and defend peace and security;

(iv) Promote self-sustaining development on the basis of collective self-reliance, and the interdependence of Member States;

(v) Achieve complementarily between national and regional strategies and programmes.

(vi) Promote and maximize productive employment and utilization of resources of the Region;

(vii) Achieve sustainable utilization of natural resources and effective protection of the environment;

(viii) Strengthen and consolidate the long standing historical, social and cultural affinities and links among the people of the Region.

1.5 Institutions

The principal institutions of SADC following the adoption of the Extra-Ordinary Summit of the Report on the Restructuring of SADC Institutions are as follows: Summit, Trioka, Organ on Politics, Defence and Security, Council of Ministers, Integrated Committee of Ministers, Tribunal, SADC National Committees, Standing Committee of Senior Officials, and Secretariat.

The Integrated Committee of Ministers is a new institutions aimed at ensuring proper guidance, coordination and harmonization of cross-sectoral activities. The Integrated Committee of Ministers performs the function of overseeing the four core areas of integration notably Trade, Industry, Finance and Investment, Infrastructure and Services, Food, Agriculture and Natural Resources, Social and Human Development and Special Programmes.

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1.6 Challenges

Though economic integration has taken a firm root in both SADC and COMESA there are a number of challenges which are hindering the economic integration in the said institutions as follows;-

1.6.1 Overlapping Membership

Simultaneous membership of countries in more than one regional group is widespread in Africa. For instance, in the Eastern and Southern Africa region, some countries are members of SACU and SADC, and COMESA and SADC at the same time. An AAO???? study to understand problems of country participation in SADC and COMESA shows that countries do face problems by participating in many regional economic groupings. These problems include; human and financial costs associated with membership; lack of harmonization of policies, especially in the areas of rules of origin and customs procedures, a large information gap at policy making and implementation levels and changing political position of the member countries of different regional economic groupings.

1.6.2 Poor Private Sector Participation

The implementation of the regional treaties requires the understanding, and confidence of the private sector. In short, the private sector as well as the general public must be actively involved in the economic integration process if indeed regional economic groupings are to succeed. Country level studies in SADC and COMESA show that the participation of the private sector is hampered by lack of government resources to ensure full participation and when resources are secured, the participation is limited at the level of the chamber of commerce officials. Besides, lack of adequate knowledge to use existing information at the level of private sector association is also noted as a major problem.

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1.6.3 Political Issue: Loss of Sovereignty and Lack of Political Commitment

Regional integration experience in Africa shows that countries are hesitant to create supra-national bodies and transfer power to them as a sanctioning authority. The secretariats that are formed, for example SADC and COMESA, do not have the legal backing to compel countries to fulfil their obligations, such as reducing tariff rates and other trade barriers in accordance with their commitments. On political commitment, despite the rhetoric to economic integration, practical commitment is lacking. It is observed that many regional economic groupings including SADC and COMESA are more committed to other multilateral like (WTO) and bilateral commitments (EU - ACP) than to regional agreements. This is partly explained by aid-dependence and conditions attached to such arrangements.

1.6.4 Implementation Problems of Harmonization Policies

Harmonization problems include lack of harmonization of tariffs, custom procedures and tax policies as well as incentive package for investment; problems related to donor support such as certain donors supporting SADC whilst others supporting COMESA, thereby creating unhealthy competition among the regional economic groups.

1.6.5 Dependence on Colonial Powers

The dependence of many African countries on their former colonial powers tends to work against viable regional economic groupings. Thus the importance of North-South linkages (Franco-African and Commonwealth links and various Lome Conventions, now Cotonou Agreement, distracts commitment from intra-Africa or regional groupings.

1.6.6 Institutional Weaknesses

This includes the existence of too many regional organizations, a tendency towards top-heavy structures with too many political appointments, failures by governments to meet financial obligations to regional organizations, poor preparation for meetings and lack

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of follow up by sectoral ministries on decisions taken at regional meetings by Heads of State.

1.6.7 WeakStates,WarsandConflicts

For economic integration to deepen and result in growth and development there is a need for peace. The wars and conflicts in a number of African regions act as distracters to process of regional economic integration.

1.7 Conclusion

Economic integration or regional groupings is crucial to the countries’ survival in era of the global economy where competitiveness and market share for trade in goods and services is determined not by individual countries but by the regional groupings. African countries’ economies and population are small to assert any serious influence on the world trade and hence need for institutions such as SADC and COMESA to advance not only their regional trade agenda but also get a stake in the world economy.

Both SADC and COMESA have made large progress towards regional economic integration but they need to do more and move faster as well as involve the private sector and the general public in order for them to see the benefits of economic integration.

2.0 PREVALENCE OF FUNCTIONAL ILLITERACY IN THE MOTHER ONGUE: IS SOCIO-ECONOMIC DEVELOPMENT VIA INDIGENOUS AFRICAN LANGUAGES ATTAINABLE IN CONTEMPORARY AFRICAN SOCIETIES?

If Africa is to move forward educationally and developmentally, the culture of the masses would need to be brought in from the cold. Education must reach the urban and rural millions in ways which culturally speak to them; in forms which do not dismiss their historical and cultural heritage. But rather recognizing this, constructs

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education and knowledge on the basis of what the people already know.

…… If we can take knowledge and modern science to the masses in their own languages, then in all likelihood the developmental transformation of Africa will be well within grasp.

Professor Kwesi Kwaa Prah: Preface to African Languages for the Mass Education of Africans

2.1 Introductory RemarksNeither in intent nor in design does the present paper make any claim to being a scholarly piece of work. Rather, its primary purpose is to suggest a frame of reference in which answers to the question “Is sustainable socio-economic development via indigenous African languages feasible in contemporary African societies?” can be explored in a fruitful manner. To this end, as essentially a frame of reference, the paper has been written in the form of a tentative outline of the obstacles, or practical difficulties that may be advanced as militating against the effective utilization of indigenous African languages for purposes of promoting sustainable socio-economic development in Africa.

In structure, this article has been organized under three main sub-headings, thus:

2.1.1 Backdrop Consisting in turn of two subsidiary parts, namely,

2.1.1.1 The policy level’ and

2.1.1.2 The theoretical (or scholarly) level’

2.1.2 The Practical (or implementation) LevelThe principal aim of the backdrop is to provide the relevant background to the range of issues to be considered subsequently in the second section, the implementation level.

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2.1.3 Conclusion: The Challenge

2.2 Backdrop

2.2.1 The Policy LevelAt the continental level, the most explicit policy statement with respect to the for Africa to consider placing indigenous African languages at the centre of its peoples’ socio-economic development, expected to be expressed through relevant policies and programmes, is that embodied in the Organization of African Unity (OAU, 1986) Language Plan of Action for Africa. As adopted by (the then) OAU Heads of State and Government in Addis Ababa in July 1986, the relevant key clause for the present purposes is that stated in Part III (d), “Programme of Action: Methods and Means”, in these terms:

In order to fulfill the objectives set out in Part 1, the African States solemnly subscribe to the following programme of action: … … … … … …

(d) At national level, the imperative need for each OAU Member State to consider it necessary and primary that it formulates with the minimum of delay a language policy that places an indigenous language, or languages, spoken and in active use by its peoples at the centre of its socio-economic development.

Just prior to the adoption of the Language Plan of Action by the former OAU (now African Union), the Economic Commission for Africa (ECA) organized a series of seminars, the first in Addis Ababa, Ethiopia, in March, 1979 and the second in Nairobi, Kenya in July of the same year, around the theme ‘Alternative Patterns of Development and Life Styles for the African Region’ whose principal aim was to examine whether in the process of each nation devising a form of development that was felt to be best suited to the contemporary and long-term needs and cultural temperament of its peoples there were strategies of development which were fundamentally different from those generally assumed, or tacitly accepted, to be derivately patterned on the Western model of development. At the seminar in Nairobi, in July 1979, as recorded in the Authors monograph; The African language as a tool of development (Kashoki, 1984) took the following line of thought:

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If indeed at this stage the challenge is for Africa to search for a process of devising for itself a pattern of development [that is] in better and closer harmony with the social [and cultural] ethos of her peoples, and the OAU’s stand on language is a representative pointer to the direction that search should take, then it is reasonable to argue that one ought to assume the special [or central] place of language in that search. … … … …

If the search is indeed for alternative patterns of development, and the OAU is seriously committed … … … to the elevation of African languages to a position where they can eventually replace European languages as the preeminent languages in the estimation of the African peoples, then it may be argued that the African language ought to be considered a viable tool of contemporary development in Africa’s [long] march to modernity (Kashoki: 1984, pp 2 – 3).

At this level, the continental level, besides the background information that as been provided up to this point, it will suffice to make only passing reference to a couple of additional documents that also bear relevantly on the concerns of the present forum. These are the (OAU) Cultural Charter for Africa (CM/764 [XXVII]) and closely related to it the (OAU) Lagos Plan of Action (as cited in the ‘Report of the Conference of Vice-Chancellors/Presidents/ Rectors of Higher Learning in Africa’ (E/ECA/TPCW/3/7)1. The relevance of these texts, as supplementary inspirational frames of reference, may be illustrated by the fact that Article 17 of the Cultural Charter for Africa, for example, stresses “the imperative need to develop African languages which will ensure their cultural advancement and accelerate their economic and social development”, while the Lagos Plan of Action suggests the possible ways of how best this can be accomplished.

The fervent yearning, evident in virtually all sovereign African states, for a greater degree of utilization of the linguistic resources available in the given country has found concrete expression in three main ways: (a) constitution making (b) formulation of national cultural policies and (c) language policy formulation.

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More than ever before, for example, what is generally evident in most African countries is the emphasis that has been placed, or is in the process of being placed, on culture and language as being of critical significance in the daily lives of the people in contemporary African societies. Typically, this is being done by enshrining them in their national institutions. Thus we see, for example, that in the Southern African region, such countries as Malawi, Mozambique, Namibia and South Africa have characteristically in the recent past taken steps to ensure that culture and language are enshrined in their national constitutions as fundamental human rights. In this context, the Constitution of the Republic of Namibia (no date) provides that:

every person shall be entitled to enjoy, practice, profess, maintain and promote any culture, language, tradition or religion subject to the terms of this Constitution and further to the condition that the rights protected by this Article do not impinge upon the rights of others or the national interest.

In similar vein, the Constitution of the Republic of Malawi of 1995 stipulates that “every person shall have the right to use the language and to participate in the cultural life of his choice”. Likewise, as cited in Lopes (1999: 104)1 the revised Mozambican Constitution of 1990, after specifying that Portuguese shall be the official language, proceeds, in addition, to proclaim that “the state shall value the national languages and promote their development and their growing usage as vehicular languages and in the education of citizens”. Relatively more recently, the Republic of South Africa has similarly stipulated in its 1996 Constitution that “everyone has the right to use the language and to participate in the cultural life of their choice” provided that “no one exercising these rights may do so in a manner inconsistent with any provision of the Bill of Rights”. In Zambia, a similar provision has been recommended for inclusion in the republican Constitution currently (2007-2008) under consideration by the National Constitution Conference (NCC) prior to being enacted into law by the National Assembly.

Turning now to cultural policies as frames of reference, the preliminary general point to make here is that over the past few years a number of African sovereign states that comprise the Southern African Development Community (SADC) either have already developed and established a national cultural policy or are in the process of doing so.

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But, in the context of the present conference, perhaps of greater interest and relevance is the existence since 2000 of the SADC Protocol on Culture, Information and Sport, a regional policy document that now provides a frame of reference (containing such guidelines as general principles and common objectives) that may be used by Member States when formulating their own national cultural policies. Under Culture, Article 2 (Objectives), objective 13, which calls upon Member States to “ensure that culture plays a significant role in the economic development of the region and to evaluate all SADC projects and programmes for their cultural impact”, is particularly germane in this regard.

With regard to language policy formulation, it will be recalled that, after 1986, the Language Plan of Action (already cited), under Part III, ‘Programme of Action (Methods and Means), places a special obligation upon African Union (AU) Member States to bear in mind that, at national level, there is an “imperative need for each OAU [now AU] Member State to consider it necessary and primary that it formulates with the minimum of delay a language policy that places an indigenous language, or languages, spoken and in active use by its peoples at the centre of its socio-economic development”.

Besides South Africa and Zimbabwe, a detailed account of whose language policy formulation will be found in my article titled ‘Language Policy Formulation in Multilingual Southern Africa’ (see Kashoki, 2003)5, I know of no other AU Member State that has so far responded in the manner expected of it by the Language Plan of Action for Africa. In the majority of cases, AU Member States appear to have been preoccupied with formulating national language policies that are specific to certain selected domains of formal government business, e.g., education, law, public media (electronic and print), parliamentary debates, etc. The present conference provides, in this regard, an appropriate forum as well as the opportune moment for participants to compare notes and to learn from each other’s varied experiences.

2.2.2 The Scholarly SceneAt the theoretical or scholarly level, what is immediately strikingly evident is that the latter part of the 20th Century into the 21st Century, in particular, has witnessed a sustained robust scholarly debate in

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the sociolinguistic literature, much of it, characteristically, in favour of the need for African countries to begin to utilize their indigenous African languages to a greater degree than has been the case hitherto as a more appropriate solid cultural foundation in which to anchor their contemporary and long-term socio-economic development. The few examples of recent scholarly works by African scholars listed below seek to illustrate as well and to underscore this point:

Bamgbose, Ayo (1991),

Language and the Nation: The language question in sub-Saharan Africa.

(Especially Chapter 2 ‘Language, Communication and National Development’). Edinburgh: Edinburgh University Press

Prah, Kwesi Kwaa (1995) African Languages for the Mass Education of Africans.

Bonn: Deutsche Stiftung Für Internationale Entwicklung

Miti, Lazarus M. (2007), ‘Linguicism in Southern Africa: In whose language do we preach democracy and development?’A paper presented at The National Workshop to Review Broadcasting Policy in Zambian Languages, and Language-in-Education Policy and Practice in Zambia (15th – 20th October, 2007, Lusaka, Zambia), sponsored by the Open Society Initiative for Southern Africa (OSISA) and the Department of Language and Social Sciences Education (LSSE), University of Zambia.

Wakumelo-Nkolola, M (2007), ‘Language and Good Governance in Zambia: Situation and Considerations’. A paper presented at the same National Workshop as above.

Lubinda, John M (2007), ‘The Role of Community Media in the Practical Promotion of Minority Zambian Languages’.A paper presented at the same National Workshop as above.

Mbewe, M (2007), ‘Sign language and Braille as Tools for Sustainable Development’.

A paper presented at the same National Workshop as above.

Kashoki, Mubanga E. (1982), ‘Is Mubanga Kashoki Promoting Bemba?: The problem of promoting African languages in Zambia’.

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Zango, Zambian Journal of Contemporary Issues, Number 10, pp 55 – 65 (1984) The African Language as a Tool of Development. OAU-BIL Papers No. 1. Kampala, Uganda: OAU Inter African Bureau of Languages. Also republished as Epilogue, in his (1990) The Factor of Language in Zambia. Lusaka; Kenneth Kaunda Foundation

(1993) ‘Some thoughts on a Future Language Policy for South Africa: With reference to the Language Plan of Action for Africa’.

In Robert K Herbert (Ed.) Not with One Mouth, a special edition of African Studies, Volume 52 No. 2,

C. M. Doke Centenary, (1993)‘Language Policy: Language, law and human rights vis-à-vis the place and role of non-official languages in a democracy in multilingual countries’.

In Prinsloo, Karel, Yvo Peeters, Joseph Turi and Christo van Rensburg (Eds.) Language, Law and Equality. Pretoria: University of South Africa. (1999)‘Language policy in multilingual countries vis-à-vis language maintenance, language shift and language death’. Journal of Humanities, University of Zambia, pp. 41-62.

(2001) ‘Harnessing Africa’s Cultural Heritage for Human Progress’. Journal of Humanities, The University of Zambia, Volume 3, pp 1 – 10.

The virtual unanimity of consensus evident among African scholars regarding the need for African countries to begin utilizing their indigenous African languages to a greater extent than has been the case up to the present day, as reflected in the sample of scholarly works listed above as well as those not included in the list, is aptly represented by what Professor Prah states in the Preface to his own work:

If we are working towards the day when the rural masses can be taught enough English, French or Portuguese to be able to create culture in these languages, this day may only remain a mirage constantly retreating in the face of whatever advance we make. If on the other hand we can take knowledge and modern science to the masses in their own languages, then in all likelihood the developmental transformation of Africa will be well within grasp.(Prah, 1995, Preface, p. ii)

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The position of the Author, as an endorsement of this apt counsel, has been to argue that

“If indeed at this stage the challenge is for Africa consciously to search for a process of devising for herself a pattern of development in better and closer harmony with the [cultural] ethos of her peoples, and the OAU’s stand on language is a representative pointer to the direction that search should take, then it is reasonable to argue that one ought to assume the special place of [the indigenous African] language in that search”. (Kashoki, 1984, pp 2 – 3).

2.3 FACTORS THAT MAY BE SUGGESTED AS MILITATING AGAINST THE UTILIZATION OF INDIGENOUS AFRICAN LANGUAGES FOR ATTAINING SUSTAINABLE SOCIO-ECONOMIC DEVELOPMENT IN AFRICAN COUNTRIES

2.3.1 Preliminary RemarksGiven the backdrop that has been provided in the preceding section, is it reasonable for anyone to have any doubts whatsoever that sustainable socio-economic development can be achieved if indigenous African languages were to be utilized in the future than is the case at the present time as the principal means of communication for attaining the desired results? Or put slightly differently in the context of the central thrust of the present article, is sustainable socio-economic development indeed achievable through a route that, as a matter of national policy or principle, consciously elects to harness the services of indigenous African languages as the principal means of communication? I believe it is indeed justifiably reasonable for one to harbour such doubts.

It is at any rate the purpose of the present section of the paper to attempt to underscore the point that despite the well-meaning and, perhaps, even noble, intentions evident in the national constitutions and cultural and language policies of African countries, oftentimes buttressed by persuasive scholarly arguments, there is nevertheless a wide range of factors that appear to militate against the translation of these otherwise good intentions and sound scholarly arguments into implementable or practical programmes of action. For example, in the recent past, there have been strong calls in Zambia for the national constitution as well as the laws of the country to be translated into indigenous Zambian languages in the interest of promoting democracy

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and good governance and by implication, in general, social and economic development. The question is: Can these aspirations be translated into concrete deeds or tangible results?

The answer to this question cannot be a matter of yes or no for the simple reason that the issues involved are many, varied and tantalizingly complex. Some of these will now be attempted as follows:

2.3.2 “Westernization” of the minds of the African peoplesThe very first issue which I regard as deserving closer examination at this forum is that concerning the rather controversial issue of “Westernization of the minds of the African peoples”. With regard to this particular issue, I have previously contended that the colonization of the African continent by former imperial powers, more than perhaps any other epoch in Africa’s very long history, had the immediate and long-term effect of altering in a fundamental manner the socio-cultural systems, particularly the indigenous systems of education, that had previously shaped the mentality as well as the outlook on life of the African peoples prior to the arrival on the African land mass of European territory – acquisition adventurism.

The effect was not only one of undermining African socio-cultural systems and institutions, [arguably] its most pernicious effect was to cause the African to look to western man for moral, spiritual, technical and intellectual guidance and leadership. Indeed, it has been said that the most significant accomplishment of Western man on a global scale has been the creation (or more correctly the re-creation) of non-Western man in the image of Western man.

(cf Kashoki (1982) ‘Indigenous Scholarship in African Universities: The human factor’, p.37) 2 Because the present-day state of affairs associated with the negligible non-utilization of indigenous African languages for purposes of achieving sustainable socio-economic development for the benefit of the greatest number of people in African countries is most probably to be attributed to this legacy it is suggested that the second issue also deserving due critical examination is that concerning the Western-type of formal education as inherited and still in use today in almost all African countries, particularly in sub-Saharan Africa.

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2.3.3 Prevalence of functional illiteracy in the mother tongue (i.e. in indigenous African languages generally)To place this issue in its proper context, a preliminary note on the meaning to be attached to the phrase “functional literacy” (and consequently “functional illiteracy literacy”) is in order at this point. In a recent article in which he attempted to provide what he considered to be an analytically more valid explanation for the apparent (or assumed) absence of a “reading culture in Zambia”, Dr. John, L. Luangala begins by defining a “reading culture” in these terms:

by a reading culture is meant a people’s way of life in which reading is the key survival strategy, i.e., a way of life in which people use conventional graphic symbols to make sense of a situation, to frame it, and to control themselves in acting on it. Our conception of a reading culture, therefore, should not be restricted to leisure, a constituent element; it should instead reflect the totality of a way of life as implied in the word culture. (Luangala, 2006, p.42) 3

This accords almost entirely with the sense in which the phrase “functional literacy” is intended to be understood in the context of the central thrust of the present argument.

For purposes of vivid illustration, the Author offers himself in this regard as a ready representative case in point: Born in 1937, in Northern Rhodesia, the present-day Zambia, I began to acquire my Western type of formal education in 1945 at the not-so-tender age of twelve by today’s standards. At that time the prevailing language-in-education policy was based unequivocally on the principle which held that a (school) child should receive instruction both in and through his or her own mother tongue and that this right should not be withheld from the African child and further that, as a general rule, the first three years of school education should be carried out on exclusively in an African language.4 Thus it was that when he first entered a school classroom in sub-standard A in 1945, he was fortunate to be given the opportunity to begin acquiring the basic skills of reading and writing in his own mother tongue – (Icibemba), which at that time, fortuitously, happened to be one of the indigenous African languages that had been included among those officially prescribed for use in the formal education system in Northern Rhodesia. Then in 1949, now in Standard III, after a brief period of savouring the privilege of being instructed through the medium of my own mother tongue,

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what he now consider to be a personal life-time tragedy befell me as well as others of his generation. This was so because at this point the language-in-education policy now stipulated that from henceforth he would be required to learn and to be taught in a foreign language – English – throughout the rest of his formal education. As a result of this, he has remained in a continuous state of elopement with the English language to this day, all in all, a span of some 58 years, or slightly more than half of his life time on this planet.

In order for the point being made here to be appreciated, it is pertinent to recount yet another personal experience in the same vein. Towards the late 1990s, as a response on my part to the challenge posed by the Language Plan of Action for Africa to specialists working in the field of language that they should strive to strike a proper balance between the scientific study of African languages and their practical promotion, he most unwisely (i.e., without fully realizing what he was getting myself into) applied to the Institute of Economic and Social Research of the University of Zambia, where he has been based as a researcher since 1971, for funds to enable him undertake a research project that was designed to entail describing Icibemba orthographic rules through (or in) the medium of the language itself. In the course of undertaking this scholarly piece of work, hesoon came to realize that the protracted period of slightly more than half a century of unbroken attachment to the English language had acted adversely to distance him almost totally from his mother tongue. The most notable lesson he came to learn from this experiment was that at this point in his life he had great difficulty functioning as a scholar in his native language. In other words, Icibemba had in practical terms virtually become a foreign language to him over the years.

In the context of the theme of the present conference, what generalizable conclusions can one draw from the experiences of a single individual such as the Author? More to the point, what implications, more generally, do experiences of this sort have for prospects of harnessing indigenous African languages in the future for the express purpose of promoting sustainable socio-economic development on the African continent, with particular reference to our own part of this vast continent?

For the Author, if nothing else, the single most important lesson to be drawn from the personal experiences of a single individual as he

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has endeavoured to recount them in the preceding paragraphs is that, extrapolated more generally, they represent a relentless, systematic distancing, or alienation, of formally educated persons in Africa from their respective mother tongues or ancestral languages, that is, in Dr Luangala’s terms as well as his own, they provide ample evidence of the prevalence of functional illiteracy in the mother tongue in the case of formally educated citizens in Africa.

What has been described so far pertained to a situation that obtained prior to Zambia’s attainment of political independence from British rule in 1964. In 1966, Zambia, now already an independent sovereign state, adopted a language-in-education policy that marked a significant departure from established language policy and practice, with deep roots, as we have seen, in the colonial era. An Act of Parliament, later to be known as the “Education Act of 1966”, stipulated that “subject to these [i.e., Language-in-education] Regulations, the English language shall be the medium of instruction in all schools” with the additional proviso that “During the teaching as a subject at a school of any language other than English, the language which is the subject of instruction may be used as the medium of instruction”. In 1992, some twenty-five years later, this policy was revised and in its place a new one, as enunciated in Focus on Learning (Government of the Republic of Zambia, 1992), now stipulated that the main local language would become the basic language of instruction in Grade 1 through 4.

The policy was to be changed yet again, for, barely four years later, the Zambian Government adopted and published Educating Our Future: National Policy on Education, whose underlying philosophy with respect to medium of instruction was stated in these terms:

Basic reading and writing will initially be learned in a local language, whereas officially English will remain as the medium of instruction. By providing for the use of a local language for initial literacy acquisition, children’s learning of essential reading and writing skills should be better assured. By providing for the use of English as the official language of instruction for other content areas, children’s preparation for the use of this language in school and subsequent life will be facilitated while the implementation problems of changing over to other languages will be avoided. (Government of the Republic of Zambia, 1996).

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What, at least for me, is particularly most striking or instructive about the formulation of the latest language-in-education policy in Zambia is the explicitness of the underlying or intended ultimate aim, namely

“By providing for the use of English as the official language of instruction for other content areas, children’s preparation for the use of this language in school and subsequent life will be facilitated ……”

Thus, as in the colonial period, the underlying rationale and hence the ultimate aim, during the post-independence era, would appear to be that after a brief period of toying with an indigenous African language, a school child’s permanent functional literacy is, by design, expected to be in the English language. Formulaically stated, the underlying educational philosophy of this policy would seem to have the following as the guiding principle for present as well as future formally educated generations in Zambia (and, presumably, in Africa in general):

“Initial, transitory literacy competence in an indigenous African language en route to permanent functional literacy in English (or some other Indo-European language, e.g., French, Portuguese, etc.,) is what is expected of you as a formally educated person in Africa.”

More recently, on January 29, 2008, in the course of delivering a lecture to a class of University of Zambia (UNZA) students taking a course in African Languages Teaching Methods in preparation for their subsequently becoming teachers of indigenous Zambian languages in Zambia’s education system on a topic which he titled ‘The trials and tribulations of an African scholar when attempting to write and publish scholarly or academic works in the medium of an indigenous African language’, he seized the opportunity to conduct an impromptu, improvised experiment that was intended to gauge the effects the successive language-in-education policies of the post-independence era may have had on Zambian generations after the “Education Act of 1966”. The method of inquiry was fairly simple in design. It involved simply asking the students present in the class to indicate by a show of hands whether anyone of them could claim with any degree of confidence that he or she was able to read and write reasonably well – i.e., whether s(he) was functionally literate – in any indigenous Zambian language. Not a single hand went up at the first prompting. Even after the question was rephrased in the interest of greater clarity, still not a single hand went up. This simple experiment served to provide evidence, however tentative, of the prevalence, or otherwise, of functional literacy among post – 1966 Zambian generations.

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The question, though, is whether the UNZA student sample that participated in an essentially adhoc experiment can be assumed to be representative of the entire range of successive cohorts of the post-1966 Zambian generations. However, in the context of the theme of this conference, far more relevant is to ask whether the situation that has been described as obtaining with respect to Zambia is similarly applicable to the other countries that constitute the Association of Law Reform Agencies of Eastern and Southern Africa (ALRAESA) given that, both from an historical and contemporary perspective, these countries have evolved as well as implemented varied national language policies in response to the aspirations and perceived needs of their respective peoples.

In this regard, the present conference conceived and designed as a forum for exploring ways and means of ensuring that law reform is made to be aligned more closely to programmes of accelerating socio-economic development in Africa, one such way of doing this being the utilization of indigenous African languages to a greater extent than has been the case hitherto, provides a rare opportunity for ALRAESA members to compare notes with a view to strategizing and suggesting what needs to be done in the future.

2.4 The Challenge

2.5 ConclusionIt will be apparent from the manner the aspect concerning language and development has been handled in the present paper that the approach has been of interpreting, and consequently treating, the main theme of the conference, namely, ‘Law Reform and Economic Development’, in a sense, as a kind of long-term project. So understood, any project conceived as a long-term undertaking ought ideally to involve some degree of strategizing (i.e., strategic planning), a major component of which, as has more recently become the fashion, requires undertaking a SWOT (i.e., Strengths, Weaknesses, Opportunities and Threats) analysis.

Thus, if ‘Law Reform and Economic Development’, conceived and understood essentially as a long-term goal, is to be achieved via the route of utilizing indigenous African languages in the future as one of the principal means of attaining that objective, planned programmes of action ought ideally to be preceded by a clear identification and appreciation of the (current) strengths, potential obstacles and internal

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and external conditions that are most likely bound to affect the anticipated outcome, whether positively or adversely.

With this in mind, the Author suggests that, besides the incidence of functional illiteracy in indigenous African languages that has already been singled out as one of the major factors that is certain to militate against achieving sustainable socio-economic development in Africa, there are several other factors which similarly deserve due critical attention. Those listed below come readily to mind:

a) the type as well as the state of the political will present in the given country;

b) underdeveloped or weak national economies evident in most African countries;

c) prevalence of negative (and sometimes even hostile) societal attitudes towards the use of indigenous African languages for official purposes among the African populations;

d) the tendency for reward systems in most African countries not recognizing/ acknowledging meritorious performance in indigenous African languages;

e) Undeveloped or underdeveloped specialized, technical or professional terminology (or vocabularies) appropriate to serve the needs of contemporary African societies.

In the light of all the above, I consider it pertinent to end with this cautionary note: Let Us Look before We Leap!

NOTES

1. For an informative account of the language situation in Mozambique consult Lopes, J. article ‘The language situation in Mozambique’ in Kaplan, R. and Baldauf, R. (Eds) Language Planning in Malawi, Mozambique and Philippines. Clevedon: Multilingual Matters.

2. For an extended discussion of this point, confer my article ‘Indigenous Scholarship in African Universities: The human factor’ in Fahim, Hussein (Ed.) Indigenous Anthropology in Non-Western Countries. Durham, North Carolina: Carolina Academic Press.

3. For more details, see Luangala, John R. ‘A reading culture in Zambia: An alternative explanation of its absence’. Journal of Humanities,

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University of Zambia, Volume 4, 2005 (pp. 41-51)4. For further details refer to ‘The use of vernacular languages

in education: Report of the UNESCO meeting of specialists’. UNESCO’s Monographs on Fundamental Education VIII. Paris: UNESCO, 1951 (pp. 47-8)

5. For further details confer my article ‘Language policy formulation in Multilingual Southern Africa’. Multilingual and Multicultural Development, Vol 24:3, 2003

3.0 THE SMALL CLAIMS COURTS OF ZAMBIA

3.1 Introduction

In this Article the Author highlight the steps that have been taken by the Zambian judiciary in its quest to set up the Small Claims Courts in Zambia. To achieve this, the Author highlights the governing statute for Small Claims Court and the deficiencies that have been identified in same. The same proceed to state the steps taken in addressing the flaws in the statute and the assistance received from neighbouring countries. Following this, the Author continues to state the recent developments that is the training undertaken and the logistical support that has been put in place for the establishment of Small Claims Court. In the conclusion the Author attempts to address the importance of review in relation to problems solving through courts in Zambia.

3.2 Governing Statute

Provision for Small Claims Courts in Zambia is made under the Small Claims Courts Act Chapter47 of the Laws of Zambia. This Act was enacted on 31st July 1992 and it establishes Small Claims Courts. In this respect it states under Section 31 as follows:

“There is hereby established Small Claims Courts which shall be situated in such areas as the Chief Justice may consider necessary, having regard to the needs of a particular area.”

1 Cap 47

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In terms of jurisdiction the Acts states as follows:

“The Jurisdiction of a Small Claims Court shall be limited to liquidated claims of not more than four thousand fee units and shall be exercised by way of arbitration.”2

The important points to note here are that:

(i) The jurisdiction is limited to liquidated demands. It does not extend to recovery of moveable or immoveable properties against the occupant of any premises.

(ii) The jurisdictional limit in monetary terms is four thousand fee units. In terms of the Fees and Fines Act3 a “fee unit” is equal to one hundred and eighty kwacha4 (K180.00). In our currency, the jurisdiction of the Courts is therefore limited to seven hundred and twenty thousand kwacha (K720,000.00) which translates to slightly below one hundred pounds (GBP100) and two hundred united states dollars (USD200).

(iii) The jurisdiction of the said Courts is to be exercised by way of arbitration and in this respect the Act makes provision for the Courts to be presided over by arbitrator.5

In terms of proceedings in the Courts, the Act provides for same to be simple and informal and to be held in open court.6 As a result of this there is no provision for legal representation in the Court.7

In exercising its adjudicative powers, the Court’s primary concern is to reconcile the parties and do substantial justice8 between the parties. The Court like any other Court is empowered to:

(i) Hear the facts of the case and receive any documents in support of a claim.

(ii) Summon any person who is a Defendant or a potential witness.

2 Section 5 of the Act3 Chapter 45 of the Laws of Zambia4 Section 4 of the fees and fines5 See Section 4 of the Act6 See Section 12 of the Act7 See Section 13 of the Act8 See Section 14 of the Act

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(iii) Order sanctions for non compliance with its orders.(iv) Dismiss a claim or make an award for payment of moneys with or

without interest or order restitution of property.

(v) Order specific performance of a contract.Regarding the effect of an award rendered by the Court, the Act9 makes provision for such an award to be final. Appeals, to the High Court are only allowable on points of law. Appeals arising from such awards are allowed to the extent of permitting a party to levy execution via warrants of distress.

In its administrative powers of justice, the Court enjoys similar privileges and protections as those enjoyed by other Courts. In this respect Arbitrators and other Court Officers are immune from prosecution arising from acts done or omitted to be done in the execution of their functions10 however, Courts are also empowered to met out the punishment of contempt of Court.

As an appendix, to the Act, there are the Small Claims Court Rules11. The Rules are promulgated by the Chief Justice and their purpose is to enhance the smooth operations of the Court. The Rules highlight the commencement procedure of claims in the Courts, which is by way of Notice of Claims. The Rules also set out the procedure and practice in the Courts.The Act ends with the First Schedule, which contains the various forms used in the Courts.

3.3 Short Comings in the Act There are a number of flaws in the Act that have been identified by the intended users. The flaws or deficiencies are perhaps one of the reasons why implementation of the Courts has been delayed in Zambia. Some of the flaws identified are as follows:

3.3.1 ThePresidingOfficers

The presiding officers in the Courts have been designated the title of arbitrator12. Consequently the decisions they will be handing down have been termed “awards.” “Arbitration is a private process

9 Section 22 of the Act10 Section 30 of the Act11 Section 31 of the Act12 ‘2 See Section 4 of the Act

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of adjudicating disputes. Small Claims Courts will be part of the Judiciary’s hierarchy and they can, therefore not be presided over by ‘private persons’ called arbitrators. For the same reason their decisions can never be awards; but judgments and their jurisdiction can only be exercised by way of judicial adjudication13.” The jurisdiction of arbitrators as we all know is determined by the parties and his power to adjudicate is derived from the appointment. The adjudicators in the Small Claims Courts will be appointed by the state and perform their functions in the name of the state. They must therefore be named appropriately and in our case the name commissioner is proposed.

The decisions, to be handed down, will be judgments. This is a term used universally in Courts for decisions that are handed down. The judgment will be arrived at by the commissioners after weighing the evidence from both parties in consideration of the jurisdictional limit set by the Act. They will not be based on the agreement by the parties or submission to the commissioner entered into by the parties: in doing so the Commissioners will not be arbitrating but performing Court adjudicative functions.

3.3.2 Jurisdictional Limit

The jurisdictional limit of the Courts is stipulated in Section 5 of the Act. As stated earlier the jurisdiction is pegged at four thousand fee units which in monetary terms is K720,000 which works out to less than GBP100 and USD200. This is grossly low given the current levels of economic activities in the country. In South Africa the jurisdiction of the Court is SAR 7,000 which is approximately USD1,000. This is a more realistic figure.The jurisdictional limit is also set by parliament and can only be amended by parliament. The result is it takes long to amend such a provision.

The other problem identified in the jurisdictional limit is that it appears that claims are limited to liquidated demands. The wording of the Section in this respect is “...the jurisdiction of a Small Claims Court shall be limited to liquidated claims....”u This suggests that the jurisdiction is restricted to claims for moneys owed only. There is no provision for

13 Speech by the Hon Chief Justice Mr Justice E L Sakala at the official opening of the training workshop for Commissioners (Arbitrators) of the Small Claims Courts held at Chaminuka Lodge on 29th February 2008.

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a claim for movable or immovable property whose monetary value is within the jurisdictional limit. Section 20 (1) (c) of the Act attempts to address this by giving the Courts power to order restitution of any property. Given the definition of the word “restitution”, it does not appear to extend to claims for possession of property leased or chattels hired.

3.3.3 Procedure to be Adopted in the Courts

Section 14 of the Act states in part that when adjudicating the Court will aim at reconciling the parties and it shall be the primary function of the Court to do substantial justice between the parties.

Section 5 of the Act suggests that the adjudicators will be sitting as reconciliators. This is contrary to the judicial system which hears the evidence from the two sides then delivers a judgment. The system does not allow parties to generate or explore options for settlement according to their needs or interests.

3.3.4 Effect of an Award

The Act under Section 22 stipulates that awards rendered by Small Claims Courts shall be final and only subject to appeal on points of law. The term “points of law” is very general and has not been defined in the Act. Moreover looking at the simplicity of the claims before such Courts, one wonders what errors of law are likely to arise in the decisions handed down. This provision may create a room for an abuse. .

3.3.5 Enforcement of Awards

The provision for enforcement of awards is Section 24 of the Act. This Section provides for enforcement by way of a warrant of distress. As we all know, warrants of distress are used for recovery of rental arrears. Further, such warrants are issued by the landlords directed at a certificated to bailiff and are not issued by the Courts.

3.4 Measures Put in Place by The Judiciary for the Establishment of Small Claims Court

For the past two years, the Judiciary has been working towards the

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establishment of Small Claims Courts. The Courts are seen as one of the vehicles for decongesting the clogged legal system. As a first step, His Lordship, the Chief Justice reconstituted the Small Claims Courts Committee, and charged it with the responsibility of setting up the said Courts. The Committee is chaired by a High Court Judge Justice C. Kajimanga and draws its membership from the legal fraternity and business community. Thus far, the Committee has made significant strides in realising its objectives. Some of the successes scored are as follows:

3.4.1 Amendments to the Act

From its inception the Committee did recognize that for as long as the Act remained in its current form the Courts could not be successfully established. It therefore set upon a deliberate path of working towards amending the Act. A consultant in the name of Dr Ngosa Simbyakula, was therefore engaged in the year 2005 to look at the Act and make relevant recommendations for amendment. Such recommendations were to tabled before a subcommittee which undertook a study tour to South Africa to view the operations of the Courts and study the South African laws in respect of the Small Claims Courts. On its return the subcommittee finalised the drafts of the intended amendments to the Act which have since been submitted to the Ministry of Justice for making into law. Some of the areas addressed by the intended amendments are as follows:

1) Changing of the title of adjudicators from arbitrators to commissioners.

2) Changing of the term award to judgment.3) Eliminating the practice of arbitration from the Courts.4) Proposes the increase of jurisdiction to the sum of

K20,000,000.5) Makes provision for the Chief Justice to set the jurisdictional

limit by statutory instrument and broadens the jurisdiction of the Court’s claims for liquidated amounts, to include claims for movable and immovable property and specific performance falling within the monetary jurisdictional limit. There is also provision for incidental jurisdiction to cover for instances where a party is permitted to abandon part of his claim to come within the jurisdictional limit.

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6) Makes specific provision for Commissioners to be regulated by the Judicial Code of Conduct Act No. 13 of 1999. This will ensure that the standard of adjudication is high and instill public confidence in the Courts. The application of the said act is with exception of Sections 16, 17 and 18 of the Act Code as it recognizes that the Commissioners are on a part time basis and are indeed legal practitioners.

3.4.2 TrainingofCommissionersandotherCourtOfficers

On 29th February 2008 and 1st March 2008 the Judiciary in conjunction with the Department of Justice in South Africa conducted training for the Commissioners and Court Officers. The Commissioners were 20 in total whilst the Court Officers were 8. The training involved taking them through the current Small Claims Court Act and the intended amendments thereto, a study of the intended Commissioners’ and Clerks’ Manuals including the various Court Forms. The Court Officers were also given lectures in the general principals of the Laws of Tort and Contract. The trainees subsequently undertook a study tour of the Small Claims Courts in South Africa where they sat in to view proceedings in the Courts and received briefings from the officials at the Courts.

The Commissioners have already been appointed by the Judicial Service Commission and will perform their adjudicative functions on a part time basis. This is similar to what is prevailing in South Africa where Commissioners are drawn from the legal profession. In other jurisdictions such as Zimbabwe, these Courts are presided over by Magistrates. In Australia, Canada, United Kingdom and the United States of America, these Courts are presided over by Judges14. The Zambian Courts are already congested and as such the Magistrates and Judges cannot be freed to perform the adjudicative role of the Small Claims Courts.

3.4.3 Administrative Support

Initially, two Courts will be established, one at Lusaka and the other

14 1b The need for Small Claims Courts in Zambia. Paper presented by Hon. Justice C. Kajimanga, Chairperson Small Claims Court Committee at the Bar / Bench Conference held at Protea Lodge, Chisamba

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at Ndola. More Courts will later be established in other parts of the country15. With the support of co-operating partners, the Judiciary has purchased vehicles, furniture and equipment for use by the Courts. The Judiciary also intends to mount public awareness campaigns which will include but not restricted to distribution of posters and brouchers on the Courts, electronic and print media advertisement and radio and television interviews.

3.5 Conclusion

In my concluding remarks I wish to state that the Judiciary and indeed the Zambian Government has risen to the challenge of setting up the people’s Courts. Thus far they have acquitted themselves admirable and I am positive the Courts will be up and running soon especially once the Act has been amended. The proposed increase in jurisdictional limit will help stimulate economic activity in the country.

Once the Courts are established, the Zambian citizens will have greater access to justice and will indeed be empowered in that they will have control of their destiny and quicker realisation of their claims. This development will also help decongest the other Courts freeing then to concentrate on more deserving and serious issues. This will lead to speedy delivery of justice leading to significant economic development.

4.0 LAW REFORM AND ECONOMIC DEVELOPMENT: INVESTMENT LEGISLATION

4.1 Introduction

Investment is a key contributor to economic growth and development of any country. It brings in the much needed capital, technology and management know-how that enhances access to new markets. The Zambia Development Act16 (ZDA), defines “investment” as;

15 The need for Small Claims Courts in Zambia. Paper presented by Hon. Justice C. Kajimanga, Chairperson Small Claims Court Committee at the Bar / Bench Conference held at Protea Lodge, Chisamba

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“Contribution of capital, in cash or in kind, by an investor to a new business enterprise, to the expansion or rehabilitation of an existing business enterprise or the purchase of an existing business enterprise from the state”.

The broader definition of “investment” cover every kind of asset owned or controlled, directly by an investor, it would extend to licences and permits it could even cover rights to search for and extract natural resources. It could even extend to ̂ claims to money’ and performance resulting from cross-border commercial transaction. Zambia has over the past 15 years, witnessed a peak in foreign direct investment (FDI) inflows, with over US$3 billion worth of investments in various sectors having been registered by investment authorities. The trend of FDI in flows has still continued and the mining sector being the most attractive. The hospitality industry, banking industry, beverage bottling and processing, retail, engineering and petroleum industry, amongst others. Although the corresponding employment generated by this increase has not been significant, the upward trend in investment value coming into Zambia is favourably perceived. Typically, the agency responsible for receiving and processing project applications records a 65 - 80 per cent implementation rate of FDI inquiries.

This article discusses Zambia’s investment law in an effort to give foreign investors a brief but clear understanding of the legal and institutional framework regulating investments in Zambia. A major part of the paper is dedicated to the analysis of the principal law regulating investments, looking at the investment promotion measures provided, incentives offered, the implementing authority and dispute settlement. The tax regime, labour laws and the Judicial system are also discussed.

4.2 Investment EnvironmentZambia has a favourable investment environment which is accountable for the increased investments the country has been receiving. Zambia is a mutli-party democracy state and has enjoyed political stability since obtaining independence in 1964. The country therefore boasts to be a regional epicenter of stability, security and peaceful environment for

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business and investors, which diminishes political risk. In addition, the country is blessed with abundant under-utilized natural resources and man power and its central location in the region with eight neighbouring countries, makes it ideally located to reap benefits of cross border trade between the SADC and COMESA markets; countries with which Zambia has traditionally maintained good economic and political rapport.

Zambia further provides a market-oriented liberalized economic environment in a strife-free, multi-cultural state. With the country’s integration into the world economy, the pattern of foreign trade has shifted to become fully liberalized and procedures and documentations necessary for investments and carrying on business have been simplified. Tarrifs for most basic raw materials and capital goods now range from 0-5 per cent.

The liberalization of the economy has seen the abolition of government controls of commodity prices’ and foreign exchange. The country now has a thriving private sector, which the government supports through various measures, aimed at promoting private sector development. The interest rates and the country’s currency are now stable and the inflation rate is in single digit, a key indicator to macroeconomic stability.

The Zambian Government welcomes investors (both local and foreign) and has designed a package of incentives aimed specifically at creating a sound investment climate for increased domestic growthand guarantees security of the investment enterprises. The country also offers various banking, financial, legal and insurance services of international standards, which will be very useful for investors.

4.3 Legal and Institutional Framework Regulating Investments

4.3.1 The Anatomy of Zambia Development Agency Act

A host country’s fiscal policies, laws and regulations relating to investments in the country together comprise a basic framework for the business enabling environment that is conducive for capital investment inflows. Investment laws are the most authoritative, complete and detailed statement of the government policy towards

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foreign investments and therefore, play an important role in promoting and regulating Foreign Direct Investments (FDI).

The principal law regulating and promoting investments in Zambia is the Zambia Development Agency Act which came into force on 7th July 2006, aims at fostering economic growth and development by promoting trade and investment in Zambia through an efficient, effective and coordinated private sector-led economic development strategy. The ZDA Act repealed the main statutes that previously regulated and promoted investments, namely; the Investments Act of 1993, the Export processing Zones Act (No.29 of 2001), the Export Development Act, (No.29 of 1994); and the Small Enterprises Development Act (No. 29 of 1996). The Act also provides for the repeal of the Privatization Act on the date appointed by the Minister on his being satisfied that, all pending matters under the Privatization Act, have been disposed of. The enactment of the ZDA Act, was therefore mainly intended to provide a one-stop centre, for investors in a bid to reduce bureaucracy and inefficiencies, as well as to reduce the cost of starting up business in Zambia.

4.3.1.1 Silent Features of the Act4.3.1.2 The Creation of the Zambia Development Agency

The ZDA Act, under section 4, establishes the Zambia Development Agency (ZDA). The major objective of the Agency is to further Zambia’s economic development by promoting efficiency, investment and competitiveness in business and promoting exports from Zambia. The ZDA is the result of merging the functions of the five bodies that were created under the repealed Acts, namely; the Export Board of Zambia; the Zambia Investment Centre; the Zambia Export Processing Zones Authority; the Small Enterprises Development Board and the Zambia Privatization Agency.

The need for the integration of some of the functions performed by the individual bodies named above had been felt for some time. This was with a view to reducing bureaucracy and introducing greater efficiencies in the processing of investment which would in turn foster increased economic growth, thereby promoting investment and trade for Zambia. The Agency has since assumed its responsibilities for

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trade and industrial development and the promotion of investment. The Agency is also responsible for the privatization and commercialization of the remaining state-owned enterprises. It is expected that the streamlining of the functions previously performed by the former agencies, will foster increased private sector participation in local and international trade, while enhancing efficiency.

The running of the Agency is placed in the hands of a Board of

Directors which consists of sixteen members, ten of them being from the public sector and the other six from the private sector. The Minister responsible for Commerce, Trade and Industry appoints the Chairperson and Vice-Chairperson of the Board from among the members.

4.3.1.3 The Creation of Multi-Facility Zones

The Act gives the Minister of Commerce Trade and Industry authority to declare an area, premises or building to be a multi-facility economic zone. This is done on the recommendations of the Board after consultation with the Minister of Finance and with approval of the Cabinet.

Multi-Facility Economic Zones (MFEZs) are specific geographic areas or premises with the highest quality of physical and social infrastructure that will attract investment in the manufacturing sector and act as engines for economic growth, wealth and job creation and increased foreign exchange earnings. The MFEZs are expected to make Zambia a centre of excellence in economic development in the region, through increased activities in the manufacturing sector.

The first MFEZ has been created by China Non-ferrous Metal Company (CNMC) in Chambeshi on the Copperbelt. CNMC has pledged an investment of US$800 million in the Chambeshi Economic Zone which is expected to create 6,000 jobs. The other area identified for establishment of a MFEZ is in Lusaka South, which will be developed jointly by the Zambian Government and Kulim High Tech Park Corporation of Malaysia with the support of the Japanese Government through Japanese International Cooperation Agency (JICA). India has

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also indicated of setting a multi-facility Economic zone in Kabwe, central province, whose economy was depressed after the closure of lead and zinc mine.

4.3.1.4 The Creation of Trade and Industrial Development Fund and the Privatisation

The ZDA Act, establishes a Trade and Industrial Development Fund, intended to provide funding to finance individuals and institutions which will support economic growth and development by undertaking investment especially in priority areas and products. The fund will be applied to support micro, small and medium-sized enterprises, rural business enterprises and other business enterprises as determined by the Board of the Agency.

The Act, also establishes the Privatization Trust Account in which the Agency shall hold shares in trust for the Zambian citizens, which will be divested after state-owned enterprises have been privatized. The funds held in the Privatization Trust Account, may be used for, among other things, meeting privatization costs, financing credit creation for investors, supporting new capital investments, and funding social projects that will be in the public interest. This will undoubtedly provide opportunity for investment growth.

4.3.1.5 Entry And Establishment of FDI

The Act permits investments in all regions of Zambia and in all sectors and industries except the following:

An industry manufacturing- arms and ammunition, explosives, military vehicles and equipment, aircraft and any other military hardware; industry manufacturing poisons, narcotics, dangerous drugs and toxic, hazardous and carcinogenic materials and industry producing currency, coins and security documents.

Notwithstanding these restrictions, an investor may invest in any of the above restricted industries subject to authorization from the relevant regulatory authority or any written law.

The Act, has a registration procedure and requires prospective investors

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in any business enterprise, or to develop premises as, or operate a business in, a multi-facility economic zone, to apply to the Board for an investment licence, permit or certificate permit or certificate of registration which the Board should either approve or disapprove within 14 days. When granted, the licence, permit or certificate of registration is valid for ten years (renewable for another ten years) during which the investor must implement the investment.

4.3.1.6 Incentives and Support Services Offered

Parts VIII and IX of the Act, provide for incentives and support services that may be given to investors who hold a licence, permit or certificate of registration. The Minister of Finance in consultation with the Minister of Commerce, Trade and Industry is responsible for making the regulations on incentives.

The threshold to qualify for an incentive under the Act, as specified under section 56, is US$500,000 or the investment in a priority sector or product. The incentives will be specified by or under the Income Tax Act or the Customs and Excise Act. The sectors and products regarded as a priority are listed under the second schedule of the Act and include floriculture (fresh and dried flowers), processed foods (such as wheat flour) and the manufacturer of engineering products such as copper products, iron ore, steel and cobalt.

The threshold of US$500,000 or equivalent in convertible currency implies that kwacha investments do not qualify for incentives because the kwacha is not a convertible currency. Most Micro, Small and Medium-sized Enterprises will also not qualify for incentives under the Act, as they are unlikely to meet the US$500,000 threshold.

Further incentives are provided for machines or equipment acquired by investors. However, to qualify for incentives under this head, the machinery or equipment must be that acquired by:

(a) A business enterprise conducting operations in a priority sector or in respect of priority products; or

(b) A rural enterprise

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Investors who qualify for an incentive under this head will be exempt from customs duties on the acquired machinery or equipment, as specified by or under the Customs and Excise Act.

It is important to note that, the exemption here is only from customs duties. The amounts due for Value Added Tax (VAT), will still be payable. In fact, the amount of VAT may even be higher than the duties or income that is exempt.

Section 58 of the Act addresses major investments in new assets, that qualify for incentives. The Minister of Finance may, for the purposes of promoting major investments in an identified sector or product, by statutory instrument and in consultation with the Minister of Commerce Trade and Industry, specifically additional incentives for investments of not less than US$10 Million or the equipment in convertible currency, in new assets in an identified sector or product.

Part IX of the Act, provides for support services offered to investors. Under section 64, the Zambia Development Agency is required to assist an investor in identifying and acquiring suitable land for investment. The Agency is also, under sections 66 and 67, required to assist an investor in obtaining services and facilities such as water, electricity, transport and communication services, required for the investment and also to assist the investor in registration and licensing procedures necessary for commenting or operating a business enterprise. Regrettably, the Ministry of Lands has lamentably failed to be of much assistance to investor due to the slowness in the processing of titles to land.

Under, section 65, an investment of a minimum of US$250,000 or equivalent in convertible currency and who employs at least 200 employees, is entitled to a self-employment residence permit. Such an investor is also entitled to receive assistance from the Agency in obtaining work permits for up to five expatriate employees. The provision requires that a certain number of persons so employed, as may be prescribed, should hold managerial and technical positions, if the investor is to qualify for the said benefits.

The foregoing provisions have been questioned by potential and existing foreign investors. For instance, questions have been asked as to why the

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different threshold US$250,000 (under Section. 65) against the US$500,000 already stated under Section 56 of the Act. Stakeholders feel that, only one figure should be applicable for better clarification. Another concern that has been raised is that, only a few investors (and in exceptional cases) will be able to invest as much as US$250,000 as well as employ a minimum of 200 persons.

4.3.1.7 Other Major Provisions in the ZDA Act (i) Protection from Acquisition

Under section 19, an investors’ property from compulsory acquisition except for purposes under an Act of Parliament that provides for acquisition of property and which provides for payment of compensation for such acquisition.

(ii) As long as relevant taxes are paid, investors may transfer out of Zambia and in foreign currency, profits, dividends and other funds generated from or in connection with their business.

(G) UTE RESOLUTION

The Act, under section 21 contains a provision for the settlement of investment disputes. This is an innovation of the Act, which was not provided for in the repealed Investment Act. According to the said provision, any dispute arising as a consequence of an investment under the Act shall be settled in accordance with the Arbitration Act17.

4.3.1.8 Critique of the ZDA

The public in Zambia have welcomed the enactment of the ZDA, stating that it shows government’s commitment in promoting investment in the country. Generally the concept and intentions of the ZDA, have been acknowledged as necessary and noble steps to fostering FDI inflows and this can be affirmed by a number of commendable provisions in the Act. On the other hand, however, the content of the Act, has still fallen short of many investors’ and stakeholders’ expectations. Various reasons have been advanced for the latent shortcomings of the Act, one of them being that the Zambia Development Agency Bill was rushed through Parliament with

17 No. 19 of 2000

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inadequate stakeholder involvement. It is also widely felt that, the Act is too broad-based and therefore, lacks focus in many areas such as Small Scale business, though detailed in some useful to big business.

The major strengths and weaknesses of the Act may be identified as the following:

4.3.1.9 Weaknesses

Some of the weaknesses of the Act include the following:Though the major intention of creating the Zambia Development Agency was to provide a one-stop-centre for investors in a bid to reduce on their burdens as well as to reduce on the cost of starting-up business in Zambia; thus will not be possible long as other approval authorities lie with different institutions.

The composition of the Board of the Agency is not private sector led. Of the 16 members, only 6 are not from government or government agencies. The Agency could therefore become bureaucratic due to its composition. The number of members of the Board - - is also too big for its functions, making it unnecessarily more costly to run the Agency. In Botswana, the agency responsible for promoting investments has been able to operate successfully with only eight board members;

• Restrictions on permitted investments are not adequate. The Act, permits investments in any sector except the three sectors listed in the first schedule, which does not include small-scale business and retail trade. The Act, does not provide minimum capital requirements for FDI in the country. This would have been necessary to sieve out low value foreign investments;

• Most Zambian enterprises are disqualified from

incentives on account of the qualification thresholds

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being, firstly, rather high for them, and secondly quoted in US dollars or the equivalent in convertible currency, as kwacha is not a convertible currency meaning that kwacha investments do not qualify;

• The free transfer out of the country of investment

funds allowed by the Act is a serious error which may result in the country losing out on opportunities of expansion of foreign business enterprises and also loss of the much needed foreign exchange.

•The problem may be more acute were a foreign investor is, even enjoying a tax holiday and they transfer all their profits back to their country after depleting our national resources.

Overall, however, it may be stated that the enactment of the ZDA Act, has sent a clear signal to investors that the Government is committed to the promotion of investment and this can be seen through the ongoing national reforms on private sector development. What needs to be done is to identify and rectify the latent defects in the Act and perhaps, put in place a continuous process of law revision to ensure the law is up-to-date to meet upcoming challenges, as the Chinese have done. The Zambia Development Agency, should also be more innovative in its investment promotion measures and even try to follow measures taken by other countries that are leading or emerging attractors of FDI.

4.4 Tax Regime and Tax IncentivesTax law in Zambia is mainly provided under three pieces of legislation. The income Tax Act, the Customs and Excise Act, and the Value Added Tax Act. The Ministry of Finance and National Planning is responsible for the formulation of the country’s tax policy which is implemented by the Zambia Revenue Authority (ZRA) .The role of ZRA encompasses revenue collection, facilitation of international trade and advising the Government on tax policies.

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4.4.1 Tax Rates for Business Income (Corporate Tax, Royalty and Withholding Tax)

All residents and non-residents receiving income from a source in Zambia, are liable to pay tax under the Income Tax Act. Personal Income tax, is formulated on a progressive tax rate structure with tax ranging 0% for annual incomes of K7,200,000 and below, to 35% for annual incomes above K48,000,000.

4.4.2 Customs Duty

There are three categories for import duties 25% Mainly for finished products15% For intermediate goods0-5% For raw materials and capital goods

4.4.3 Value Added Tax (VAT)

The VAT standard has been reduced from 17.5% to 16 effective 1st April 2008.

4.4.4 General Incentives

General incentives are available to investors investing in various sectors of the economy. These incentives are provided for under the income Tax Act, Customs and Excise Act and the Valve Added Tax Act.

Incentives under the Income Tax Act generally include the following:

1. Income earned companies in the first years of listing on the Lusaka Stock Exchange qualifies for a 2% discount on the applicable company tax rate in the particular sector. However, companies with more than one-third of their shareholding in the hands of Zambians qualify for a 7% discount.

2. An investment allowance of 10% of the cost of capital expenditure is available to investors who incur capital expenditure on the construction or alteration of an industry building used for manufacturing;

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3. Buildings used for manufacturing, mining or hotels qualify for a wear and tear allowance, plus an initial allowance of 10% of the cost in the first year and (wear and tear allowance only) 5% in subsequent years;

4.Implements, machinery and plant used for farming, manufacturing or tourism qualify for a wear and tear allowance of 50% of the cost year in the first two years;

5.Corporate tax for farming, fertilizer production and non-traditional export stands favorably at the rate of 15% as compared to the 35% tax rate applicable to other companies, while companies mining copper and cobalt are taxed at 30%. Not too long ago, mining companies were enjoying corporate tax rates of 25%, but this was changed due to the high copper prices.

6.Foreign exchange losses of a capital nature incurred on borrowings used for the building and construction of an industrial or commercial building are deductable;

7.Expenditure on research, technical education, or any further training related to a company’s specific business activity is also allowable as a deduction;

8.Any loss incurred by a person (which includes body corporate) which exceeds the income earned in the tax year, the incurred loss is, for tax purposes, carried forward and deducted from the income of the following year(s), but not beyond 10 subsequent years for companies mining copper and cobalt, and not beyond 5 subsequent years, in any other case;

9.Double taxation agreements are also available to companies that find themselves liable to tax in Zambia and in another country, in respect of the same income. The double taxation agreements may be used to prevent the taxation of the same income twice or provide some other form of tax relief for foreign investors;

Incentives under the Customs and Excise Act, generally Include duty-free exemption for agricultural and mining machinery, and duty rates of 0-5%

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for most raw material and other capital machinery imports.

Further, relief is granted under the duty drawback scheme. To qualify for this scheme, the following conditions must be met:

(a) The company or individuals must be in a manufacturing business;

(b) The company or individual must be an exporter or intends to start exporting; and

(c) The company or individual must be in any sector other than the mining sector.

The Value Added Tax Act, on the other hand, offers some of the following incentives:

1. Relief for VAT registered business on imports of eligible capital goods (VAT deferment);

2. Zero rate on export of taxable products;3. Relief of VAT on transfer of Business as a going concern;4. Cash accounting for specialized association;5. VAT relief on input tax paid for purchases made by registered

suppliers;6. Reduction of VAT rate for investors in tax-zones.

There are five categories of investors who can be considered for tax relief under the ZDA Act:

i. Investment of not less than US$10 million in an identified sector or product (major investments). This category of investors is entitled to the general incentives under the Income Tax Act and the Customs and Excise Act and further, is entitled to negotiation with the government (through the Minister of Finance) for additional incentives other than what they might already qualify for under Act.

ii. Investors who invest not less than US$500,000 in a priority sector or product, or in a multi-facility economic zone

iii. Investors who are designated as micro or small enterprises under the ZDA Statute. Like the second category, this category is also, in addition to the applicable general incentives, entitled to the following incentives:

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(i) For an enterprise in an urban area the income shall be exempt from tax for the first three (3) years;

(ii) For an enterprise in a rural area the income shall be exempt from tax for the first (5) years.

(iv) Investors who invest less than US$500 in a priority sector or product. This category is only entitled to general incentives.

(v) Investors who invest any amount in a sector or product not provided for as a priority sector or product under the ZDA. This category is also only entitled to the general incentives provided under the various pieces of tax legislation.

A general observation of tax incentives in Zambia is that they have existed for a long time. What is interesting to note, however, is that the earlier emphasis on support for declining sector has, over the years since 1980s, been supplemented with support for newer sectors and advanced technologies.

Zambia has enacted the Citizenship Empowerment Act, whose preamble is couched in these terms:

“....promote the economic empowerment of targeted citizens, citizen empowered companies and citizen owned companies which should be helped in accessing and being awarded procurement contracts and other services from state investments”.

The philosophy underlying the Act, is to positively discriminate domestic companies and negates the concept of ‘National Treatment’, which is the principal policy governing investment under the ‘World Trading Rules’ and some developed countries like Turkey.

4.5 The Problem of Enacting Neo Liberal Investment Legislation

4.6 Labour Law and Regulations

Apart from investment and tax law, foreign investor will also need to be conversant with the host country’s labour laws and regulations because the investment enterprise, once set up, will obviously employ

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persons and this will call for the investor’s adherence to the labour laws.

The fundamental pieces of legislation pertaining to the labour market in Zambia includes the following:

(a) The Employment Act18 This Act, regulates contractual relations between an employer and employee. It provides inter alia, the minimum conditions and contents of an employment contract, minimum contractual age, and for rules pertaining to termination of contract employment. The Act also provides for labour officers and their appointment, conditions of leave and redundancy policies.

(b) The Industrial and Labour Relations Act19 This Act, regulates the conduct of industrial relations in the workplace by spelling out the rights and obligations of employers and employees. The Act, which contains principles of employee involvement in certain aspects of the business, aims at building a spirit of management consultation with employees through the medium of work councils.The Industrial and Labour relations Act, sets out the framework for the role of trade unions and prescribes the conditions under which strikes may be called. It also provides for settlement of employer-employee disputes through a consultative machinery. The Act, established and confirms the Industrial Relations Court as the arbiter of industrial relations disputes.

(c ) The Minimum Wages and Conditions of Employment Act20: The Act provides for the minimum wages and conditions of employment of workers. The minimum wages and conditions of employment are regularly revised by the Minister of Labour in order to meet the demands of economic and social conditions of the time.

The minimum Wages and Conditions of Employment Act usually

18 Cap. 26819 Cap. 26920 Cap. 276

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provides the main source of confrontation with foreign investors. The often tension-creating issue is whether there is a co-relation between the stipulated minimum wages and conditions of employment, on the other hand and the profitability of the multinational enterprise, on the other. Investors often find the stipulated minimum wages to be too high to be paid, especially at the beginning of business.Other labour - related laws include the Employment of Young Persons and Children Act, which provides for protection of young persons and children in the employment relationship and the Workers’ Compensation Act, which provides for the payment of compensation to an employee injured during the performance of his duties.

4.7 The Judicial System

Foreign investors also have access to the Zambian courts for settlement of disputes. The judicature of the Republic has five different levels of courts which are; the Local Courts, Subordinate Courts, Industrial Relations Court, the High Court and the Supreme Court, which is the Court of final appeal.

Most relevant for commercial disputes is the High Court which has a commercial registry that specifically handles commercial matters with an expedited and abridged civil procedure. In addition there is a small claims court which is designed to deal with smaller claims in an expeditious manner, usually within a day. Investments gravitate to destinations with an efficient legal system. The creation of the ‘commercial Division’ , the enactment of the ‘Arbitration Act’ , modeled on the ‘New York convention of 1958’ and the creation of ‘small claims courts’, which were joint ventures with the business community were intended to create investor confidence in the Judicia1 process.

4.8 Conclusion

There appears to be tension between the Zambia Development Act and the Citizens Employment Act, the overriding objective of the later is, to expand citizen ownership and meaningful participation in the economy. This obviously means that, you cannot accord national

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treatment to foreign investors, when you have locals who were discriminated in the colonial era.

More often than not when multinationals seek entry into the ‘Host Country’ the ‘Bargaining Power Syndrome’ is in their favour, but once they have entered the ‘Host Country’ and establish themselves, the ‘Bargaining Power Syndrome’ shifts into the ‘Host Country’s’ favour.

The rising copper prices in Zambia and the failure of the mining companies profits, to trickle down to the poor forced Government to abrogate the tax incentives contained in the ‘Development Agreements’. Konkola Copper Mines despite there being a breach as part of the government, decided to pay the taxes and not take Government to Court. The ‘Host Countries’ usually lack domestic expertise in International Investment to negotiate on their behalf and the foreign lawyers usually act in league with multinationals.

However, citizen’s empowerment, is imperatively necessary due to the inherited inequalities from colonial rule. It has been easier for countries like Turkey, which was not a victim of social and economic oppression to adopt ‘National Treatment’ as the major principle of foreign investment policy.

Zambia and other developing countries, must embark on an “open door” policy as she is in dire need of investment, which she can easily attract, as she has abundant natural resources in terms of minerals, oil, land etc. One way to manage the tension between foreign investment and social economic transformation is to enact the ‘Equity Joint Venture’ law. In China, the law sanctions subject to state approval, of joint Sino - foreign business enterprises. Participants in these ventures are liable to the firm’s debts and entitled to profits.

Developing countries as hosts of International investment have a duty to protect foreign investment and corollary to such protection, they should ensure that such investment benefits the locals and this calls for magnanimity on both sides. The problem is to balance the attraction of foreign investment and also address the social economic transformation of our societies. The legislation to manage the arising tension is the challenge that our law Development Commissions face.

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END NOTES 1. The Zambia Development Act Noll of 2006

2. The citizens Empowerment Act, No 6 of 20063. Income-Tax Act4. Customs and Exercise Act5. Employment Act Chapter 2 68 of the Laws of Zambia6. Industrial Relations Act, Chapter 2 69 of the Laws of

Zambia7 . The Minimum Wages and Conditions of Employment

Act, Chapter 276 of the Laws of Zambia8. Employment of Young Persons and Children Act9. Workers Compensation Act10. Guidelines to Developing Economic Empowerment

issued by Citizens Empowerment Commission or February 2008

11. Turkey’s New Foreign Direct Investment haw 1,487b12. European Economic Review, The Composition o

foreign direct investment and protection o intellectual property rights Evidence fro: transition economies, science-direct, conscience

13. China’s Foreign Trade and Foreign Investment. Law by Charles McClain Professor, University o California, Berkeley 13th February 2008

14. Zambia Daily Mail, 7th April 2008.

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5.0 REVIEW OF THE COMPETITION AND FAIR TRADING ACT CAP 417 OF THE LAWS OF ZAMBIA: MAKING ENFORCEMENT MORE EFFECTIVE

5.1 Introduction

1. Prior to 1990 most of the Southern African countries witnessed deterioration in their standard of living arising from the general decline in their countries’ economic performance. Despite economic reforms of the late 1980’s and 1990’s, these countries continued to face the challenge of growing and diversifying their economy, while simultaneously addressing widespread and worsening poverty levels.

2. In the Zambian scenario one of the widely recognised principal obstacles to economic growth has been a strong government presence in business through the huge parastatal sector, which was estimated to represent over 80% of the industrial and commercial activities of the country. An evaluation of these economic arrangements proved that the parastatals were not contributing to sustainable economic growth and their contribution to the treasury was negligible in relation to the huge investment they represented. The parastatals were also not sustainable business ventures and in most cases required government financial support.

3. The governments of these states therefore saw it prudent to reverse the status quo by making fundamental changes in the organisation of economic activity supported by economic liberalisation policies under the auspices of the World Bank and IMF. The timing and extent of these liberalisation measures has varied between countries. The measures resulted in widespread economic reforms in the form of three key principles of privatisation, deregulation and liberalisation.

4. In most Eastern and Southern African states, the history on the enactment of competition law is still very recent. The advent of economic and political liberalisation in the region dating from 1990s, witnessed far reaching market oriented reforms leading to

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considerable diminution in the direct role of the State in economic activity. The central theme of this process was the switch from the system of central planning or control of the economy to the use of market forces as the means to allocate resources. It was anticipated that the “free play” of supply and demand would, in the long run, determine market prices throughout the economy, allowing productive resources to be allocated in an efficient manner.

5. Structural adjustment programs were adopted that included market oriented reforms notably in the areas of deregulation of prices, including the reduction or elimination of subsidies, administrative allocation of key product inputs, privatisation of public enterprises or state companies, as well as the liberalisation of trade and investment regimes. The common aspiration underlying these reforms was that reduction of government’s direct involvement or intervention in economic activity would, by providing enterprises with more freedom and stronger incentives, stimulate entrepreneurial activity, business efficiency, productive investment and economic growth. It was also seen as a means of enhancing consumer welfare through improved quantity and quality of goods and services at prices determined by the market rather than administrative decisions. It was accepted that market liberalisation within appropriate regulatory and competition frameworks is essential to sustained enterprise development.

6. In recognition of the major role of competition law and policy in the success of the policy reforms, governments adopted competition policies and enacted competition laws. In Zambia, the Competition and Fair Trading Act, Cap 417 of the Laws of Zambia (the Act) was enacted in 1994 and three years later the Zambia Competition Commission (Commission) was established with the appointment of the Board of Commissioners and subsequently the Executive Director (Chief Executive Officer). Competition rules were primarily designed to preserve an unrestrained interaction of competitive forces that will yield enterprise development through the efficient levels of investment in discovering new production technologies, new production process and new products. The role

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of competition law and policy was therefore seen to provide strong incentives for achieving enterprise development through:

• Enhancing market access for new investors;• Protecting the economy from restrictive business practices;

and• Fostering economic efficiency and consumer welfare.

7. However, competition law and policy have not been fully appreciated by all stakeholders and this has resulted in the adoption of competition regimes which lack enforcement powers in some instances, or lack adequate provisions to effectively regulate markets in other instances. While it is accepted that competition legislation is only part of the overall economic reforms that have been undertaken by Governments, there are many instances in which Government and other stakeholders have placed more emphasis on other programmes, with little regard to competition.

5.2 Problem Statement The Competition and Fair Trading Act, Cap 417 of the Laws of Zambia has been implemented by the Zambia Competition Commission for the last ten years with varied levels of success. The Commission was set up primarily to encourage efficiency in the production and distribution of goods and services and also to protect and enhance the welfare of consumers. In order to achieve this, the Commission monitors, controls and prohibits anti-competitive acts and behaviours that prevent, restrict or distort competition or negatively affect trade in general in the economy. However, the effectiveness of any regulator depends on a number of factors and the way that a piece of legislation is designed greatly affects how effective the regulator will be on the market. In other words the effectiveness of the Commission depends on the provisions of the Act.

For the Commission, the fact that it has over the last ten years failed to make a single litigation, highlights that the provisions for enforcement in the Act may not be the best considering the environment in which the Commission is operating in. While it is appreciated that the Commission adopted advocacy as a way of enforcement, the effect of this form of administering the law tends to be limited because such administrative mechanisms lack deterrent effect. Where advocacy is

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employed for a long time, there is usually likely abuse and blatant violation of the law without any consequences. Therefore, a party wishing to benefit from an anti-competitive business practice would engage in that practice knowing very well that once approached by the Commission, there shall be no penalty, but in the meantime the party would have benefited from excessive profits or gained substantial market share.

It would appear that the Act as it stands currently, first; lacks in providing an appropriate institutional framework in terms of appointing authority, decision making process, and funding of the Commission that are best suited for the Zambian conditions. Second, it would also appear that the provisions of the Act on restrictive business practices are adequate save for some contradictions in certain provisions and lacunae in a number of areas. The lack of domestic Court cases has not helped resolve the contradictions and definitions. Third, the Act seems to lack adequate provisions for enforcement that would suit the Zambian conditions as there seems to be a presumption that certain conditions exist, when in actual fact these conditions do not exist or are very ineffective for proper enforcement.

This paper is a critical review of the Competition and Fair Trading Act, Cap 417 of the Laws of Zambia.21 It looks at the provisions of the Act and tries to identify areas which would foster better implementation of the Act. The paper, therefore, looks at the institutional framework and the restrictive business practices provisions in the Act and compares and contrasts these with other competition legislation where????. In conclusion, the paper makes recommendations of the way forward.

5.3 Institutional Arrangements

5.3.1 Appointing Authority The Commission is an autonomous body corporate under the Ministry of Commerce, Trade and Industry. The Minister of Commerce, Trade and industry appoints the Board of Commissioners; the Commissioners are nominated representatives from private sector, civil society and public sector organisations. The Chairperson and Vice Chairperson of

21 8. The Act has been implemented for close to ten years and has never been amended.

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the Commission are elected by the members themselves from among their number. Representatives of the Government cannot be elected to hold these tow positions. The Board is appointed on a part-time basis and their tenure of office for all Board members is three years.

The Board of Commissioners appoints all members of staff in the Secretariat. The Commission Secretariat is the investigative wing of the Commission and carries out the day to day activities of the Commission.

5.3.2 Decision Making Process The Board of Commissioners is the decision making body of the Commission. This process can be considered independent of political influence because the Board members represent their respective institutions and not necessarily the appointing authority. Further, more in the absence of the Board the Commission cannot make any decisions as the Act clearly defines the Board as the only organ that can make decisions.

In making a decision, the Board can reject out rightly any business practice that is inimical to the Act and they can authorise without conditions or authorise with conditions any business practice that does not violate the Act or that may raise some competition concerns respectively. The Board can also issue cease and desist orders and the Act also provides for the Executive Director to issue such orders. However, the Act does not provide for the Board to fine violators of the Act as fines can only be mated out by the Courts of law.

5.3.3 Funding The Commission is funded by Government grants, which are routed through Ministry of Commerce, Trade and Industry. The Commission also receives funds through notification fees. Despite these sources of funding the commission is under funded. This has resulted in relatively poor conditions of service leading to high staff turnover and also failure to have a full staff complement. Currently, there is a department of Enforcement and Compliance which has no officers because of lack of funds.

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5.3.4 Comparative Statutes In South Africa, the Competition legislation provides for the establishment of two independent permanent bodies, that is, the Competition Commission and the Competition Tribunal. The Competition Commission is the investigative wing while the Tribunal is the adjudicative institution. Unlike, the Board in Zambia the Tribunal is permanent and therefore, provides for speedy adjudication. The Competition Commission receives its funding from Department of Trade and Industry and funding is adequate.

5.3.5 Recommendations on Institutional FrameworkIn most jurisdictions the competition authority or agency are created to be autonomous bodies. The autonomy of the authority is vital so as to ensure competitive markets the authority should have powers to regulate Government parastatals and also make decisions without any political interference. Though the Commission decision making process provides for a high degree of independent decisions, its operations have however been undermined by the government grants, which are determined by the responsible ministry. Lack of adequate funds has resulted into ineffective application of the law and failure to take cases to court. Further, this has exacerbated the staff turnover and failure to have an effective operational legal department.

To remedy this, it would be most appropriate if the Commission was directly under the Parliament as is the case with the Anti-Corruption Commission and the Electoral Commission of Zambia..

Further, to ensure that cases are disposed of in an efficient manner the institutional structure of the Commission has to be reviewed. Currently, the Board of Commissioners meets four times a year a situation which has mostly affects consumer cases that usually require immediate action. While the South African system would be too expensive for Zambia, and also taking into account that the economy and number of cases for the two countries are very different, it can be recommended that the Commission Secretariat be given powers to impose administrative fines on defaulters and also make decisions on which cases should be taken to court. Further, appeals to the Commission’s decisions can then be made to a part time Competition Tribunal and further appeal to the Supreme Court.

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This begs the fundamental question of natural justice that, the investigator cannot be the judge and jury. While this is appreciated, the Commission experience has been that the court system in Zambia is too slow and expensive and hence enforcement is extremely difficult. But taking a leaf from the European Community (EC) Competition Law, the DG Comp (competition division of the EC Commission) imposes fines on parties that violate the competition provisions of the European Community Treaty (the EC Treaty) and parties not satisfied with the EC Commission decision can appeal to the Court of First Instance and subsequently to the European Court of Justice. The United Kingdom system also follows the EC system where a separate court system has been established for competition cases.

5.4 Provisions of the Act Part I of the Competition and Fair Trading Act , has the short title and the interpretation. The Act in its current form does not define a number of important economic concepts and terms which are used in the enforcement of the provisions. For example mergers, takeovers and acquisitions are not defined while words such as agreements, decisions and or concerted practices are also not defined. While the European Community Competition Law also does not define a number of economic concepts and words, case law that has developed over the years has helped in interpreting the provisions. Unfortunately this has not been the case in Zambian .22

For example an agreement as held by the Court of First Instance (CFI) was defined as a concurrency of wills between the parties to a transaction in a case Bayer v. Commission.23 The Court held that proof of an agreement must be founded upon “the existence of the subjective element that characterises the very concept of an agreement, that is to say, a concurrence of wills between economic operators on the implementation of a policy, the pursuit of an objective, or the adoption of a given line of conduct on the market.”24

22 However, Section 10 of the High Court Act allows the Commission to seek guidance from English Law and Commonwealth and even EC Court cases or statutes. This paper borrows heavily from the EC cases and statutes because the Zambia Act was based on the EC competition law.

23 Case T-41/96 Commission v Bayer {2000}24 Case T-41/96 Commission v Bayer {2000}

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Section 6 in Part II provides the Commission with wide powers of investigations, enforcement, advocacy and information dissemination. It also mandates the Commission to undertake market studies and makes reports for the public from the market studies. 5.4.1 Major elements of Competition Law (Legal Provisions

against Restrictive Business Practices)Major elements of the Act are held under Part III of the Act. The provisions on the major elements of competition include restrictive business practices, dominance, mergers and acquisitions, cartels and anti-competitive trade practices by associations. However, for the Zambian competition law like the Australian Trade Practices Act, th also includes consumer provisions which are held under Section 1225.

5.4.2 Restrictive Business Practices Section 7(1) of the Act captures restrictive business practices. It states the following:

Any category of agreements, decisions and concerted practices which have as their object the prevention, restriction or distortion of competition to an appreciable extent in Zambia or in any substantial part of it are declared anti-competitive trade practices and are herby prohibited.

This provision is generally found in most competition legislations. For the EC competition law it is under Article 81, in Zimbabwean law is under Section 28, in the South African law it is under Section 4.

To prove that Section 7(1) has been infringed the Commission or any body alleging that the section has been violated will have to prove that there was an agreement or a decision and or a concerted practice. For the Zambian situation a unilateral decision which has the object of restricting competition would be captured. However, in the other laws highlighted above such a unilateral decision would not be captured by this provision but by other provisions usually on dominance.

25 Competition and Fair Trading Act, Cap 417

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In the case of Bayer v Commission26 an agreement has been defined to mean the “concurrence of wills”. Section 7 captures both vertical arrangements27 and horizontal arrangements28. This was held by the European Court of Justice in Consten and Grundig v Commission.29 The Court held that Article 81 does not only apply to horizontal arrangements but also to vertical arrangements. Likewise the Zambia Section 7(1) does not distinguish between vertical and or horizontal agreements.

However, concerted practices are those practices which fall short of an agreement but are coordinated behaviour. The term concerted practice appears thus to be designed to provide a safety net to ensnare colluders not otherwise caught by any other prohibition. The European Court of Justice in the ICI v Commission30 confirmed that the reason for prohibiting both agreements and concerted practices was to preclude:

“coordination between undertakings which, without having reached the stage where an agreement, properly so called, has been concluded, knowingly substitutes practical cooperation between them for the risks of competition.”31

Secondly to prove a breach of Section 7(1) there has to be an object to restrict competition. The Commission has often used “object” and “effect” interchangeably. However, in EC law the wording of Article 81 uses both object and effect. An agreement that has the object of restricting competition would be prohibited without cause to prove anything else. However, where an agreement does not have the object of restricting competition but does have the effect of restricting competition, then it would be necessary to prove the actual effect of the conduct. Article 81(3) provides for a leeway to prove that the conduct may have some benefits.

26 Case T-41/96 ECR II- 3383, para 17327 Aarrangements between parties at different level/stages of production28 Arrangements between parties at same level /stage of production29 Cases 56, 58/64 {1966} ECR 29930 Cases 48, 49, 51-7/69{1972}ECR 61031 Cases 48, 49, 51-7/69{1972}ECR 619 at para 64 and 65

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The Zambian law uses the generally accepted model of per se and rule of reason in analysing competition cases. Where a conduct is prohibited per se then it is out rightly prohibited and cannot be authorised. However, if a conduct is not per se prohibited, then the rule of reason is employed.

Thirdly for section 7(1) to have effect the conduct must be to an appreciable extent or must affect a substantial part of Zambia. The Court of Justice first introduced the concept of appreciability in Volk v Vervaecke.32 The Court held that an agreement would fall outside the prohibition of Article 81(1):

“where it has only an insignificant effect on the market, taking into account the weak position which the persons concerned have on the market of the product in question.”

Thus agreements concluded between parties that are weak are not caught by Section 7 on account of their insignificant effect on competition.

This concept of appreciability and the effects tests introduce the need to define the relevant market in which a company may be operating. To fully understand the effect of a conduct on a market or whether it is insignificant, there is need to define the market and use economic models to estimate the effect of the conduct. As for the appreciable concept, the market shares held by the parties to the transaction would suffice. The EC law has provided thresholds that agreements between vertical companies may not be captured by Article 81 provided the combined market share is not above 25 percent. For horizontal arrangements the threshold is much lower at 10 percent combined market share.

5.4.3 Dominance The Act provides for abuse of dominant position of the market power under two sections i.e. Section 7(2) and Section 11. The Zambian law like most laws does not prohibit the existence of monopoly institutions but prohibits the abuse of monopoly power or the market power. A firm

32 Case 5/69 {1969} ECR 295

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said to be in a dominant position relates to “a position of economic strengthen enjoyed by an undertaking which enables it to prevent effective competition being maintained on the relevant market by affording it power to behave to an appreciable extent independently of its competitors, customers and ultimately of its consumers.”33 In Zambia dominance is equated to a monopoly. The Act reads:

“Monopoly undertaking means a dominant undertaking or an undertaking which together with not more than two independent undertakings-

(a) produces, supplies, distributes or otherwise controls not less than one half of the total goods of any description that are produced, supplied or distributed throughout Zambia or any substantial part of Zambia; or

(b) provides or otherwise controls not less than one half of the services that are rendered in Zambia or any substantial part thereof.”

Legal provisions regarding a dominant position are a central element of the competition laws of most jurisdictions. While they are an important tool which can address a wide range of anti-competitive market situations, their sound application involves significant challenges. Cases that may be addressed using such provisions range from relatively simple instances of alleged predatory behaviour by firms in isolated local markets for low-technology products to the most complex cases in the field of competition law, involving for example the denial of access to network facilities in high-tech industries, the role of intellectual property rights as a source of market power and the creation of barriers to entry or possibilities for cross subsidization through government regulatory schemes.34 The famous Microsoft v Commission35 case highlights the complexity of dominance cases

33 Court ruling in United Brands v Commission Case 27/76(1987) ECR 20734 Anderson R.D and Heimler “Abuse of dominant position: Enforcement issues and ap-

proaches for developing countries,” June 200635 The European Commission has imposed a penalty payment of € 899 million on Micro-

soft for non-compliance with its obligations under the Commission’s March 2004 Deci-sion (see IP/04/382) prior to 22 October 2007. Today’s Decision, adopted under Article 24(2) of Regulation 1/2003, finds that, prior to 22 October 2007, Microsoft had charged unreasonable prices for access to interface documentation for work group servers. The

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where the DG Competition Commission has fined Microsoft over Euro 899 million for non compliance to an order to provide full documentation to allow non-Windows groups full interoperability with Windows PCs and servers as a reasonable price.

Abuses of dominance provisions typically embody three common elements. First, it is necessary to establish the existence of a dominant position held by a firm (single dominance) or group of firms (collective dominance) in a market. This in turn, requires the delineation of the relevant market(s) in which such a position is held. Secondly, it is necessary to identify specific practices that are harmful to competition. Third, their overall effects in the relevant market(s) are assessed.

The content and application of these elements varies between jurisdictions. Under Zambian law it is stipulated that a firm is unlikely to be dominant if it controls less than 50 percent of the market. The main test seems to be whether such a firm or group of firms behaves in a manner that excludes or exploits others from fair participation in the market.

It seems that the definition of a dominant position of market power is restrictive and requires broadening to include other factors such as turnover, the degree of economic concentration, the absence of substitutes and or the ability of the firm to raise or lower prices. For example, an enterprise may control 25 percent of the market, but if the rest of the market is dominated by an assortment of dissimilar units, it may well have dominant power.36 In Zambia dominant position is inferred entirely on market share. Other countries statutes or enforcement guidelines require consideration of other factors that influence the ability of firms to exercise market power, for example entry conditions.

2004 Decision, which was upheld by the Court of First Instance in September 2007 (see CJE/07/63 and MEMO/07/359), found that Microsoft had abused its dominant position under Article 82 of the EC Treaty, and required Microsoft to disclose interface documen-tation which would allow non-Microsoft work group servers to achieve full interoper-ability with Windows PCs and servers at a reasonable price. CUTS “Enforcing Competition Law in Zambia,” 2002

36

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Therefore, factors such as barriers to entry, that is, whether there is significant barriers to entry that would make it difficult for potential competitors to enter the market when the incumbent firm abuses its dominant position would have to be taken into consideration. Import competition may also be considered because where imports are allowed they tend to restrain the incumbent firms abuse of dominance. Therefore, government policy on imports and tax and import duties come into play. Another factor that could be taken into consideration when determining whether a firm can exercise market power are substitutes and potential substitutes to the products in the relevant market. The more close substitutes the less a firm will exercise market power. Demand and countervailing power also have to be considered. Where buyers of a product have countervailing power it is unlikely that a dominant firm will exercise market power.

Both economic theory and case experience underline the difficulties that are involved in reaching sound conclusions in abuse cases. It is important, in this regard, to recall that firms can achieve a dominant position in a market legitimately, for example through innovation, superior production or distribution methods, or simply through greater entrepreneurial efforts. It is therefore important that dominance is not merely looked at as the achievement of a certain market threshold but as the exercise of market power. In a market where there are two firms with one firm having a market share of 51 percent and the other having a market share of 49 percent it is unlikely that one would consider the firm with 51 percent as a dominant firm. This is because it is unlikely to exercise market power and because the two firms are of a similar size and probably produce substantially similar products, an attempt to exercise market power through a price cut may be matched by its rival thereby resulting in a stalemate.

But in the Zambian context such a firm would be considered dominant and may suffer certain restrictions in their marketing strategies because of their dominant position. This is known as the “chilling effects which is the deterrence of healthy competition and innovative business strategies that may result from the mistaken application of abuse of dominance provisions to either: (i) aggressive but healthy competition on the merits, for example through price cutting that is vigorous but unlikely to prevent future entry or re-entry to markets by

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competing firms; and (ii) benign but complex marketing strategies.37

5.4.4 Mergers, Takeovers and Acquisitions Section 8 of the Act deals with mergers and takeovers. Under the Act firms are required to fulfil mandatory pre-merger or takeover notification requirements to the Commission before a merger or a takeover is effected in Zambia. This is a crucial aspect of competition law in Zambia. BP Zambia v ZCC the High Court of Zambia held the ZCC Board decision to reject BP Zambia’s application challenging the Commission’s jurisdiction in a proposed acquisition of additional 50 percent shares in the only jet fuel facility at the Lusaka International Airport.38 The Commission assesses whether the proposed merger or acquisition is likely to prevent, restrict or distort competition.

Analysis of merger control in Zambia seems to follow international precedents of determination of relevant market in geographical and product aspects, characterisation of inter firm and product competition, determination of relative and likelihood of new entry and the existence of effective barriers to entry.

The assessment of merger or takeover by the Commission focuses on four assessment tests. These include:

ii. Whether the proposed merger or takeover is likely to substantially lessen competition in the relevant market

iii. Whether the proposed merger or takeover is likely to lead to abuse of dominant position of market power

iv. Whether the proposed merger or takeover is likely to bring about efficiencies in production and distribution; and

37 Anderson R.D and Heimler “Abuse of dominant position: Enforcement issues and ap-proaches for developing countries,” June 2006

38 Total International bought Mobil operations in Zambia. Meanwhile Mobil Zambia and BP Zambia had a joint fuel facility at Lusaka International Airport and in their joint ven-ture agreement there was a right of first refusal clause should on party decide to exit. The Total Mobil takeover resulted in Mobil exiting. Total challenged the agreement and the London Court of Arbitration ruled in favour of BP Zambia. The Commission however found the proposed acquisition of addition shares in the airport facility anti-competitive and rejected BP Zambia’s application. BP Zambia took the Commission to Court ques-tioning jurisdiction in light of the London Court of Arbitration ruling.

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v. Whether the proposed merger or takeover is likely to bring about public interest benefits.

The Commission has in fact merged the assessment tests used in the United States of America of substantial lessening of competition and efficiency tests with that used in the Europe of dominance and that used in Australia of considering public interest. However, the two tests that carry more weight in the analysis are the first two, the substantial lessening of competition test and the abuse dominance test.

The Act, however, does not provide guidance on the other two tests of efficiency and public interest tests. The efficiency test, which has now been adopted by the EC has been outlined under European Community Merger Regulations (ECMR) under Article 2.2 as efficiencies that would only come as a result of effecting the merger. Efficiencies that could ordinarily be achieved without the merger would not be considered. Before Article 2.2 was amended EC merger regulation only considered where a proposed merger would create a dominant firm. In Continental Can v Commission39 the DG Comp used Article 82 on dominance to capture a proposed merger.

The Act also does not provide guidance on what constitutes public interest. Therefore this is subjective and could only have an overriding effect over the other assessments if the public interest issues are within government policy. However, there is no way of measuring public interest and currently the Act does not provide any guidance. The Commission has however, used factors such as jobs losses or creation, revenue loss to the government both central and local, conditions of economically depressed towns in considering public interest. When the Commission allowed Zambian Breweries to takeover Northern Breweries (Northern breweries was a failing firm) the Commission’s decision was based on public interest issues. Although the substantial lessening test and the dominance test were negative, because Northern Breweries was a failing firm, the net effect was that Zambian Breweries would have still remained as the sole producer.

Competition regulates business and time to business is money. Therefore over the years merger regulations in the more developed countries have inbuilt time frames in which a merger application can be considered by the competition authority. The ECMR 139/2004

39 Case 72/21, {1972} CMLR D11

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stipulates that upon notification the DG Comp should in 25 days undertake the first stage investigation to determine whether the application raises competition concerns or not. If it does not raise any concern then a merger may be granted authorisation. However, should there be competition concerns then the application goes to a second stage where a full scale investigation is undertaken in 120 days. The Zambia Act does not provide for time limits though management has provided 90 days as the maximum time period to analyse a merger application.

In Zambia the Act provides for mandatory pre-notification, failure to which criminal sanctions40 are provided. This means that all mergers regardless of size and how they affect the market must be notified to the Commission before the merger can be consummated. In South Africa and Europe this has been found to be too time consuming and thus notification thresholds have been introduced. Mergers that meet the set thresholds are the only mergers that need to b notified while those that do not meet the threshold need not. In fact under the new EC modernisation rules merging parties decide whether or not to notify a merger following the laid out guidelines and thresholds in the ECMR. There is debate in Zambia as to whether thresholds should be introduced or not. Some of the reasons raised for mandatory pre-notification have been that data and information flow in Zambia may not be as efficient as in other countries. Arguments for thresholds is that the Commission may save time and money by concentrating only on those merger cases that may have a substantial effect on competition.

5.4.5 Horizontal Agreements or Cartels Section 9 deals with horizontal agreements – implicit or explicit arrangements between rival or potentially rival firms with identical or similar products. These arrangements are expressly prohibited as they encourage rent-seeking behaviour and unwarranted producer surpluses. The Act prohibits the following trade agreements:

i. Price fixingii. Collusive tendering

40 Fortunately, the Commission has never taken any company to court for failure to notify. Most jurisdictions have not criminalised failure to notify.

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iii. Market or customer allocation v. Sales or product quotasvi. Refusal to supply vii. Collective denials of access to an arrangement

or association which is crucial to competition

There seems to be a contradiction within the Act on price fixing as it appears in two sections Section 7(2)(g) and Section 9(3)(a) although with different wording. Where as under Section 7(2)(g) fixing of price is an allowable act, it is out rightly prohibited under Section 9(3)(a). In some jurisdictions such as the EC price fixing is an allowable act (in fact all horizontal arrangements are allowable) where there is justification. It is not always that fixing prices has negative competition effects. In EC competition law Article 81(1)(a) prohibits price fixing but Article 81(3) provides that if the conduct could be prove to benefit consumers and bring about efficiencies then such conduct may be allowed. In the USA price fixing under Section 5 of the competition Act is per se prohibited.

Horizontal arrangements, whether formal or informal, verbal or written, are forbidden outright in Zambia. However, because such agreements are secretive in nature they are difficult to detect. For as long as all member of the cartel are content with the collusion arrangements it becomes even more difficult to identify a cartel. Countries that have had success in prosecuting cartel cases have leniency programmes which allows whistle blowers to be protected either in part or completely for penalties imposed by the Courts. South Africa, Canada, USA, Australian and EC competition laws all have leniency programmes. Last year 2007 South Africa initiated investigations into a Bread cartel after one of the cartel members blew a whistle on other cartel members.41 It is therefore necessary for the

41 Michael Appel, “An administrative penalty of R98.7 million has been imposed on Tiger Consumer Brands Ltd by the Competition Commission for undesirable and anti-com-petitive practices. Tiger Brands on Monday reached a settlement with the Commission following its participation in cartels in the bread and milling industries. Tiger Brands has also agreed to assist the Commission in prosecuting the remaining cartel members who have not cooperated with the Commission and the company has also vowed to implement a compliance programme to eradicate anticompetitive practices.” BuaNews (Tshwane) 3 November 2007

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Zambian law to consider incorporating a leniency programme to curb cartel activities. The programme should provide for some level of immunity and legal protection to encourage whistle blowers.

5.4.6 Trade Practices by Associations It is an offence under section 10 to exclude any person from a trade association from carrying out the trade in relation to which the association is formed or making recommendations, directly or indirectly, by trade association to its members or any class of its members regarding the prices to be charged by members or to the margins included in the prices or pricing formula to be used in the calculation of these prices or to the terms of sale of such member or any class of members.42 This section under the Zambia law basically prohibits Trade Associations from setting prices that their members should charge as this may amount to price fixing which under Section 9(3)(a) is per se prohibited. The Act does not however prohibit decisions of associations which may have the object or effect of restricting, preventing or distorting competition. Article 81 of the EC competition law captures “decisions of associations of undertakings” which may have the object or effect of preventing restricting or distorting competition. In the BELASCO v Commission43 an agreement was discovered between members of Belasco (Societe Cooperative des Asphalteurs Belges) intended to ensure control of the Belgian roofing market. The parties had agreed among other things to adopt a common price list and minimum selling prices or roofing felt, to set quotas for sales on the Belgian market and to advertise jointly their “Belasco” products. The agreement was implemented by resolutions passed at the general meeting of Belasco. The Commission fined the trade association for coordinating the cartel.

5.4.7 Consumer Welfare The competition legislation in Zambia also has provisions for consumer welfare which are held in Section 12. This Section caters for the protection of consumers’ economic interests and standards for the safety and quality of consumer goods. In this regard, the Zambian law prohibits misleading and deceptive conduct, false and misleading representations, exclusion of liability for defective goods or any act

42 CUTS “Enforcing Competition Law in Zambia,” 200243 Case 246/86 (1989) ECR 2117

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that may be aimed at bringing about a price increase.

Zambia does not have comprehensive consumer legislation and the provisions that are in the Act require to be replaced with more comprehensive provisions that would strengthen the position of the Commission in handling consumer cases. Further, the Act in its current form does not have any provision for customers. The Act further criminalises the breach of Section 12 and does not empower the Board to administer spot fines.

Enforcement through the Courts of law would not be the best form of dealing with consumer cases. What may be required is either to allow the Commission to impose spot fines, order product recall, issue warning notices to the public and make declaration of product safety or information standards, or introduce the small claims court. Small claims courts are being introduced in Zambia and how efficient they will be is yet to be established. However, should they prove to operate well they would be the best course of action for consumer cases. But until they are introduced and fully operational powers for administrative fines should be given to the Commission.

Other consumer provisions that need to be included in the Act are on product safety standards and product information standards. Unconscionable conduct should also be included in consumer protection, which basically prohibits conduct that would disadvantage the consumer or customer.

5.5 Conclusions This paper has attempted to review the effectiveness of the Competition and Fair Trading Act, Cap 417 of the Laws of Zambia and has highlighted areas which may require strengthening or amending the Act to make the enforcement of the Act more effective. The paper has identified two cardinal areas of the Act which may have effect on the efficient enforcement of the Act and these areas are (i) the institutional arrangements; and (ii) the provisions of anti-competitive business practices. In these areas the paper has made suggests on how the Act can be improved upon giving some examples in other jurisdictions.

From the institutional arrangements it is clear that there is need to revise the decision making process. The paper makes a suggestion

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of providing the Commission with administrative powers to impose fines and also creation of a part time Tribunal to which appeals can be made. Further, the paper suggests that the Commission should not fall under a specified Ministry but under Parliament to minimise political interference by way of reduced budget.

The paper has made suggestions on the provisions on restrictive business practices. Firstly, there may be need to clearly distinguish Section 7 (1) and section 7(2) as restrictive business practice and dominance provisions. Currently the two complement each other while the two concepts can be distinguished. Secondly, the definition of a dominant firm should not be restricted to market shares alone but should include other factors such as substitute products, demand factors, import competition and barriers to entry. Thirdly, in mergers and acquisitions there should be a definition and thresholds of what would trigger notification. It is also proposed that there should be embedded in the Act a time frame in which a merger may be undertaken.

Fourthly in Cartels it is proposed that a leniency programme be introduced which encourages whistle blowers and protects them. In trade associations the provisions should be expanded to include decisions made by the association. Currently, on price recommendation and unreasonable denial of membership to the association are prohibited under Section 10 of the Act. Lastly, under Section 12 the consumer provisions should be more encompassing and comprehensive including product safety standards and information standards. Furthermore, providing the Commission with powers to recall products and warn the public on unsafe products or unscrupulous business entities.

6.0 INTELLECTUAL PROPERTY LAW

6.1 IntroductionIntellectual property (IP) is a term increasingly in use today, but still little understood. To many people it remains a mystery, some obscure legal concept of little relevance to every-day life.44 Nonetheless every activity we do in our daily lives is in one way or another affected by intellectual property. From the moment we wake up each morning, our

44

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lives are in some way affected by the works, processes and products of intellectual property.

The clothes we wear, the breakfast we eat, the newspapers which we read, the news transmitted via satellite on our televisions, the car and music on the radio as we commute to work, the correspondences, research materials we come into contact with or refer to in the course of our study or work, the computers, telephones and the very office building or library in which we spend most of our time, are all products of intellectual property.

Besides, many of the joys and activities of after office or school hours equally emanate from the creativity of the human mind and are therefore the subject of intellectual property: the movies, videos, television, cable or radio programs, music in the discotheques, the night clubs, bars, the alcoholic beverages we drink, the exercise music and equipment in the fitness centre; for others, the quiet joy of reading a book or magazine or the excitement of surfing on the net all form part of intellectual property creativity and protection. In case we are sick, the equipment used in diagnosing our illness and the medicine used to treat us are all part of intellectual property. And finally, as you lie down to sleep the designs of your bed and beddings may well also be the subject for intellectual property creation and protection.45

This paper discusses this obscure and little known subject or branch of law, IP, which has not only generated a lot of debate around the globe but has come to be viewed by most countries in particular the developed nations as a tool for economic growth and development as well as a tool for wealth creation. The paper first defines what IP is and then goes into discussing in detail the two branches of IP namely Copyright and Related Rights on one hand, and Industrial Property on the other hand. The paper also discusses the dealings in IP as well as the enforcement of IP rights and some of the general defences to IPRs infringement. The paper concludes by examining some of the changes faced by this branch of law.

45 Kanja Mpundu George, Intellectual Property Law, UNZA Press, 2006, Lusaka, ISBN 9982-03-042-6, p. 1

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6.2 What is Intellectual Property? IP is a term that describes the ideas, inventions, technologies, artworks, music and literature, that are intangible when first created, but become valuable in tangible form as products. IP can also be defined to be the legal rights which results from intellectual creations in the industrial, scientific, literary and artistic fields. Intellectual property comprises of creations that result from the mind, the human intellect.

Article 2(viii) of the Convention Establishing the World Intellectual Property Organization (WIPO), concluded in Stockholm on July 14, 1967, defines intellectual property to include rights relating to:

- literary, artistic and scientific works,- performances of performing artists, phonograms and

broadcasts,- inventions in all fields of human endeavour,- scientific discoveries,- industrial designs,- trademarks, service marks and commercial names and

designations,- protection against unfair competition,

and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields.

The above non-exhaustive definition of intellectual property is important in that it allows member States of WIPO to add to the said list those rights they may feel qualify to be protected as intellectual property rights; for example, in 1980s computer software was granted copyright protection as a literary work.

6.2.1 Intellectual Property as “Property”In order to appreciate and gain a fuller understanding of the term “intellectual property,” it is useful to approach it in terms of the notion of “property” in general. The most important feature of property is that the owner of the property may use it as he wishes and nobody else can lawfully use his property without his authorization. The owner of the property may be a human being or a legal entity, such as a corporation.

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Generally speaking, one can classify property into three types. The first type is property consisting of movable things, such as a car, a book or furniture in a home. In our legal system this is known as “movable property.” No one except the owner of the car, book or furniture can use these items of property. This legal right is referred to as “exclusive,” because it gives the owner the “exclusive” right to use his property. Naturally, the proprietor may authorize others to use the property, but without such authorization, use by others is illegal.

The second type of property is “immovable property”, or as it is sometimes known, real property. Land and things permanently fixed on it, such as houses, are immovable property, as they cannot be lifted or moved. The third type of property is “intellectual property”, which protects the creation of the human mind and the human intellect. That is why this kind of property is called “intellectual property

Intellectual property establishes the property rights that give the owner right to do certain things in relation to the subject matter. For instance, if the right is copyright and the subject matter is a piece of music, the owner of the copyright has the exclusive right to make the copies of the sheet of music and to control the performance of the music. In addition, the owner also has the negative right to prevent others from doing certain things in relation to the music such as playing it in pubs when he intended that it should only be played in churches and homes when he wrote it. Like any other type of property, intellectual property rights can be assigned, mortgaged, licensed or transmitted under operation of the law.

6.3 Branches of Intellectual PropertyThe intellectual property is traditionally divided into two branches, namely, Copyright and Related Rights and Industrial Property. Literary, artistic and scientific works belong to the copyright branch of intellectual property. Performances of performing artists, phonograms and broadcasts are called “related rights,” that is, rights related to or neighbouring to copyright.

The industrial property branch of intellectual property covers inventions and industrial designs. Inventions are new solutions to technical problems and industrial designs are aesthetic creations determining the appearance of industrial products. Furthermore,

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industrial property includes trademarks, service marks, commercial names and designations, geographical indications (indications of source and appellations of origin) and the protection against unfair competition.

It is also imperative to note that though intellectual property is divided into two branches, more often than not a product or work of intellectual property is protected by both branches of intellectual property or multiple of intellectual property rights. A good example would be a mobile phone: the innovative technical features are protected by a patent or series of patents; the aesthetic design or the shape of the mobile phone is usually protected as an industrial design; the brand used to market the mobile phone is protected by trademark; and the ring tones or games on the mobile phone are protected by copyright. In addition, the manufacturer of the mobile phones may hold a number of trade secrets ranging from their customer list, to some of the manufacturing processes or to other confidential information that he would not want to disclose to its competitors. The inventors of innovative products such as mobile phones, can obtain exclusivity to use or prohibit others from using each of these elements through intellectual property protection.

6.3.1 Copyright and Related (Neighbouring) Rights Literary, artistic and scientific works belong to the copyright branch of intellectual property. Performances of performing artists, phonograms and broadcasts are called “related rights,” that is, rights related to or neighbouring to copyright.

6.3.1.1 CopyrightCopyright is a right granted for the protection of original literary, dramatic, musical and artistic works and other works such as computer programmes, compilations sound recording, broadcasts and films, which result from the author’s own intellectual creation. Copyright normally vests, at least in the first instance, in the author of the work, unless it is created by the employee in the course of employment.

The copyright owner has the exclusive right to prevent the unauthorized reproduction, performance, broadcasting, translation and adaptation of the work. These are known as ‘economic rights’ which allows the author of a work to derive financial reward from the use of his work by

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others. In other words the economic rights enable the author to control the commercial or industrial exploitation of his work and participate in the benefits of the use of the said work.

Apart from the economic rights, the copyright owner is granted ‘moral rights’, which entitles him to be identified as the author of the work and to object to any distortion, mutilation or other modification of, or other derogatory treatment of his work which would be prejudicial to his honour or reputation. Moral rights cannot be assigned or licensed. The author always retains the moral rights. For instance, if the owner sells his economic rights to a play to a theatre company, the author still retains his right to have his name featured in the playbill, despite the fact that he does not receive any of the proceeds of the production.

As copyright protection arises automatically upon the work being created provided it fulfils the criteria for copyright protection such as the work being original, there is no need to apply for copyright registration. It is also a requirement that for literary, dramatic, musical and artistic works to be protected, they must be original and expressed in a fixed form. Besides, copyright protection is not dependant on the literary, artistic or musical quality of the work.

Copyright law protects the owner of the rights against those who use the form in which his original form was expressed by the author or a substantial part of that form. This exclusive right is however, tempered with by certain exceptions, limitations and compulsory licenses such as fair dealing or fair use provisions. Copyright work therefore, may be copied for the personal and private use of the person who makes the reproduction. Another example is the making of quotations from a protected work, provided the source of the quotation, including the name of the author, is mentioned and the extent of the quotation is compatible with fair practice. The copyright protections, lasts for the life of the author, plus fifty years, though some countries like the United Kingdom and the United States have extended this term to seventy years.

6.3.1.2 JustificationforCopyrightProtectionProtection of copyright and related rights is justified for the various reasons which include:

(a) Creative Incentive

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The author or creator of work knowing that the work will be protected against unauthorized use is thus given the incentive to write and compose. Creation of works involves investment of time, patience, skill, creative endeavour and money. If such investment is not protected, the author loses the incentive to undertake the project. Production of works benefits society. Consequently, it is necessary to give authors the incentive to carry on their work by providing, through copyright and related rights, the means to ensure their livelihood and recoup their investment. The incentive will be increased if the author knows that after his death, royalties will continue to be paid to heirs or in accordance with testamentary dispositions.

(b) Reward for labourCopyright and related rights provide the means for the author or creator of a work to obtain reward for his production. The reward for labour is based on the participation principle that allows the author or creator of a work to participate in all economic benefits realized from the use of his work.

(c) Encouragement of LearningCopyright and related rights encourage authors to create works and release them to the public for the good of society as a whole, by providing them with an incentive to create. Furthermore, it encourages others to build freely upon the ideas and information conveyed by a work, thereby providing the environment for the advancement of learning.

(d) Promotion of the EconomyThe law of copyright and related rights is mainly concerned with the use of produced material consisting of authors’ works, performances, recordings and broadcasts. The main types of use of protected material are (i) reproduction and distribution of “hard copies” through printing, sound records, films and in electronic formats, and (ii) communication in the form of radio phonic or electronic transmission. The publishing and printing, record producing, film making and broadcasting industries calls for huge investment. Publishers, producers and broadcasters, disseminate works because they believe that they will thereby make money.

Copyright enables publishers, producers and broadcasters to protect their investment by providing protection against piracy and by

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allowing the initial expenses to be recouped through sales, licensing, performance and other uses. Publishers, producers and broadcasters will not invest in the production of books, sound recordings, films, or broadcasts if the moment the product is on the market it can be freely copied or otherwise used. If piracy flourishes, the public loses, because the incentive to make new material available will disappear. Conversely, protection of investment provides a major economic incentive and benefits to the author, industry and commerce and society as a whole. These benefits include, the amount of royalties and other payments by users; employment provision in user industries (publishing and printing, record producing, film making and broadcasting, electronic dissemination) and collecting societies; value of sales of products and services and consequent benefits; exporting of copyright products, works and revenues generated from such exports; licensing the use of produced material in other countries; encouragement of further expenditure or investment in creation of works; value added to gross domestic product; and enjoyment and promotion of culture.

(e) Cultural ImportanceClearly, laws which encourage the production of literary, musical and artistic works may be said to contribute to the development of culture. The question then is whether copyright and related rights laws do in fact make such a contribution. As copyright products and works such as satellite broadcasts, telecommunications, data networks, multimedia and internet come to rule our lives, the issue of copyright protection and its economic importance has become even more important to the public.

Culture is defined as the customs and civilization of particular people. Culture reflects the common meanings of a society, whether presented as a common language, visual images, or traditional forms of performance. Its music, drama, plays, ancient and modern architecture, philosophical and political thought espoused through the mass media of television and radio, books and magazines. All these help shape our thinking, thought processes, knowledge and understanding. It also moulds each of our cultures. Every single item which has been identified as a constituent of people’s culture, is a subject matter protected by copyright and related rights. It should be noted that the composers, writers, musicians, singers, performers and other talented individuals are among society’s most valuable assets.

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The fabric of our cultural lives is enriched by their creative genius. In order to develop their talent and encourage them to create, we have to give them those individual incentives, namely remuneration in return of permission to make use of their works.

(f) Protection of Human RightsThe author’s work is an emanation of his personality and consequently should be protected. Article 27 of the Universal Declaration of Human Rights provides that everyone has the right to protection of moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

(g) Prevention of Piracy and CounterfeitPiracy and counterfeit are a disincentive to creation of copyright work. Where intellectual property protection is weak or not enforced, so as to allow piracy and counterfeit to flourish foreign owners of intellectual property rights stay out of the country and development of local industries is impeded. Furthermore, local authors and creators of copyright products and works cannot make a living from their work nor recoup their investment. Also local markets are flooded with inferior illegitimate products and technology is not incorporated in the country’s base and infrastructure. Besides, government loses revenue as no taxes are paid where there is rampant piracy and counterfeit.

6.3.1.3 Related RightsRelated rights also known as ‘neighbouring rights’ are rights that are granted to persons who present creative works to the public but who are not considered as creators of those works in their own right. Related rights are granted to performers, phonogram and film producers, broadcasting organisations and publishers. The purpose of related rights is to protect the legal interests of certain persons and legal entities who assist authors or creators to communicate their message and to disseminate or make available their copyright works to the public. One notable example is the singer or musician that performs a song written by someone or a composer to the public. In addition related rights are intended to protect those people or organisations that add substantial creative, technical or organization skill in the process of bringing a copyright work to the public.

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6.3.1.4 Industrial Rights Industrial Property branch of Intellectual Property consists of patents, industrial designs, trademarks, service marks, trade names, geographical indications (indications of source or appellations of origin), and the repression of unfair competition.

6.3.1.5 PatentsA patent is an exclusive right granted for the protection of an invention, which is a new and inventive solution to a specific problem in the field of technology. An invention may relate to the creation of an entirely new device, product, method or process, or may simply be an incremental improvement to a known product or process. Merely finding something that already exists in nature generally does not qualify as an invention; an adequate amount of human ingenuity, creativity and inventiveness must be involved.

Before we examine the conditions that an invention must meet for it to qualify for patent protection we must first explain the distinction between the two confusing terms namely “invention” and “innovation”. As already stated an invention refers to a technical solution to a technical problem. It may be an innovative idea or may be in the form of a working model or prototype.

Innovation refers to the translation of the invention into a marketable product or process. Thus companies or owners of the inventions innovate in order to improve manufacturing processes in order to save costs and improve productivity; to introduce new products that meet customer needs; to remain ahead of the competition and/or expand market share; to ensure that technology is developed to meet actual and emerging needs of the business and its clients; and to prevent technological dependence on other companies’ technology.

In order for an invention to be protected by a patent it must satisfy three conditions, namely:

(i) It must be novel (new), that is, the invention must show some new characteristic which is not known in the body of existing knowledge in its technical field. This body of existing knowledge is called the “prior art”;

(ii) It must show an inventive step (non-obviousness), which could not be obviously deduced by a person with average knowledge of the relevant technical field; and

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(iii) It must be capable of industrial application (usefulness)

The invention must also be disclosed in a clear and complete manner in the patent application. It is worth noting that not all inventions are patentable. In order to be eligible for patent protection, an invention must fall within the scope of patentable subject matter. Examples of some of the inventions that have been held not to fall within the patentable subject matter include discoveries of materials or substance already existing in nature, scientific theories or mathematical methods, methods for medical treatment of human or animals or diagnostic methods practiced on humans or animals (but not products for use in such methods), or the invention is contrary to public morality, for example, a suicide machine.

The grant of a patent gives the inventor a monopoly to work the invention to the exclusion of others for the duration of the invention, which is normally twenty years, then thereafter the invention falls into the public domain and anyone is free to make use of it or exploit it without infringement. In return for this monopoly enjoyed by the inventor, he is required to disclose details of the invention so that any person skilled in the particular art or a person having knowledge and experience of the science or technology would be able to work the invention. Though a patent gives monopoly to the inventor, there are a number of checks and balances that are designed to prevent the owner of the patent from abusing his rights such as compulsory licence.

There are a variety of reasons advanced for the justification of the patent system and notable among them to include:

(a) Incentive Theory

Developing an invention calls for significant investment in terms of capital, time, labour and equipment. In order to recoup and get a fair return on the investment as well as the risk taken to develop the invention, the inventor should be given a limited monopoly right to use or exploit the invention to the exclusion of all others. This monopoly gives the inventor the incentive to invest more in developing other inventions which are of benefit to society. It also enables him to prevent his invention from ‘free-riding’ by his competitors. A free-rider benefits from the work of others without bearing the cost of

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making a creative work or invention. By limiting free-riding, patent laws encourage investment of finance and research efforts into long term outcomes.

(b) Reward Theory

Linked to the incentive theory is the reward theory. The grant of patents to inventors is intended to encourage research, innovation and development for the benefit of the society. It is intended to help them benefit from their inventions by rewarding them for their ingenuity and work put into developing their product or process.

(c) Contract Theory

An inventor is granted a monopoly, through a patent, for a limited duration on condition that the inventor will disclose the details of his invention to the public. This encourages the publication and dissemination of information, which otherwise would not have been available to the public, save for the monopoly granted to the inventor. Details of the patents are published and are available to the public for inspection, and when the patent expires anyone is free to either make the product or use the process.

(d) Natural Law / Moral Right

A patent granted for an invention is like any other property right which is attached to the inventor and also capable of being owned. Therefore, individuals who have been granted patents for their inventions have a right of property in their inventions and this right should be protected from being stolen or usurped by others. In short, the law should provide reward for the inventor and enable him to control the use or exploitation of his invention, and to prevent others from taking unfair advantage of his efforts.

(e) Stimulate Economic Development

The rationale for patents is that they stimulate economic and technical development and promote competition by creating a financial motivation for invention. This is evidenced in terms of manufacturing enterprises established and respective jobs created; the products put on the market and sales generated by the said products; amount of royalties and other revenues from licences granted for use of inventions

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as well as the huge budgets for research and development (R&D) by enterprise.

(f) Business Asset

A patented invention is a business asset. Where the patentee chooses not to exploit the invention by himself, he has the option of either selling it or licensing it to another enterprise to commercialise it, thereby earning some revenues in form of royalties. Furthermore, the patentee may, where the patent has commercial value, use it to obtain funding from financing institutions.

In Chiron Corporation v. Organon Teknika Limited (No.10), Aldous, J. in justifying the patent system, stated that nearly every country had chosen to adopt a patent system because:

“…it is generally accepted that the opportunity of acquiring monopoly rights in an invention stimulates technical progress in at least four ways. First, it encourages research and invention; secondly, it induces an inventor to disclose his discoveries instead of keeping them a secret; thirdly, it offers a reward for the expense of developing inventions to the state at which they are commercially practical and, fourthly, it provides an inducement to invest capital in new lines of production which might not appear profitable if many competing producers embarked on them simultaneously.

It is inherent in any patent system that a patentee will acquire a monopoly giving him a right to restrict competition and also enabling him to increase or at least maintain prices. That affects the public and is contrary to the public interest, but is the recognised price that has been accepted to be necessary to secure the advantages to which I have referred.”

Notwithstanding the aforesaid justification, patents have been criticised for various reasons including that they;

(a) Create unjustifiable monopolies to companies, which often can be abused, especially where the patentee prevents or deters potential competitors from developing products similar to his own or threaten them with legal action;

(b) Increase or force up the price of essential goods, such as pharmaceuticals, and making them effectively unobtainable,

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or alternatively prevent anyone from getting access to or obtaining the product produced or sold cheaply in another market; and

(c) Block access to new technology especially by developing countries

6.3.1.6 Industrial DesignsAn industrial design is the ornamental aspect of a useful article. It refers only to the aesthetic aspects or outward appearance of a product. Therefore, industrial design is only concerned with the appearance of the product and must not be dictated solely or essentially by technical or functional features or considerations. As a general rule, an industrial design consists of the three-dimensional features, such as; the shape of a product or article, the two-dimensional features such as ornamentation, patterns and lines or colour, or a combination of two or more of these.

Industrial designs are applied to a wide variety of mass produced as well as individually crafted products; from technical and medical instruments to watches, jewellery and other luxury items; from household products, toys, furniture and electrical appliances to vehicles and architectural structures; from textile designs, leisure goods to sports equipment. Industrial design is also applied to product packaging and containers. To be eligible for industrial property protection, the industrial design must have features of shape, configuration, pattern or ornament; it must be new or original; it must be applied to industrial process; and it must appeal to an eye.

Protections of designs are justified for various reasons. Firstly, the design of an article is often the factor that makes it attractive and appealing to customers and visual appeal is the key determinant in the decision of the consumer to choose one product in preference to another. This is particularly evident where there is a wide range of products such as cars, computers performing the same function.

Secondly, developing or creating designs which must be attractive and appeal to the consumer calls for investment in terms of money, skill and time. Design protection therefore enables the owner of the design to get a fair return on his investment made in creating and marketing the design. Furthermore, design protection allows the owner of the design to prevent his competitors from copying and imitating the design,

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and thereby strengthen his competitive position. Thirdly, industrial designs are business assets that can increase the commercial value of an enterprise and its products. The more successful a design is, the higher the value of the enterprise. Fourthly, a design may provide an additional source of revenue for the enterprise, through licensing out to others, for a fee.

Notwithstanding what is stated above, the owner of the design may use his monopoly right to prevent his competitors to develop or create similar designs or threaten them with infringement actions. He may also charge high prices for his products.

6.3.1.7 TrademarksThe marking of goods for the purpose of distinguishing them from those of other traders or competitors can be traced back to the ancient world. There is evidence that, as far back as 4000 years ago, craftsmen from India, China and Persia used either their signatures or symbols to identify their products. Roman pottery-makers used more than 100 different marks to distinguish their work, the most famous being the Fortis mark, which was copied and counterfeited. These craftsmen are believed to have used marks for several purposes including as an advertisement for the markers of the products, as proof that the products belonged to a particular merchant in the event of an ownership dispute, as well as a guarantee of quality.

A trademark is any sign that is capable of distinguishing the goods or services produced or provided by one enterprise from those of other enterprises. For example, various companies produce mealie-meal used for making traditional staple food called nshima or salsa. What enables the consumer to distinguish mealie-meal produced for instance, by company A, from that produced by company B, is the sign, marking, symbol or label attached or fixed on the bags in which the mealie-meal is packed.

A trademark generally performs four main functions. These functions relate to the distinguishing of marked goods or services, their origin, quality and promotion in the market place. The first function of a trademark is to distinguish the products (whether goods or services) of an enterprises from products of other enterprises. A trademark

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facilitates the choice to be made by the consumer when buying certain products or making use of certain services. A trademark helps the consumer to identify a product which was already known to him or which was advertised. In order to fulfil this function, only distinctive signs should serve as trademarks.

The second function of a trademark is to refer to a particular enterprise which offers the products on the market, that is, give an indication as to the origin of the goods or services for which the mark is used. It should be noted that trademarks do not only distinguish products as such, but in their relationship to a particular enterprise from which the product originates. Therefore, trademarks distinguish products or services from one source, from identical or similar products or services from other sources namely, the various enterprises which offer such products or services. This function is important in the definition of the scope of protection of trademarks. The test for that protection is whether the average consumer, in view of the identical or similar trademarks relating to the products of the same kind or of similar kinds, may believe that those products originate from one and the same enterprise.

The third function of trademarks is to refer to a particular quality of the products or services for which the trademark is used. It should be noted that most of the time a trademark is not used by only one enterprise, as the trademark owner may grant licences such as a franchise, to use the trademark to other enterprises. In such a case, it is essential that licences respect the quality standards of the trademark set by the owner of the trademark.

Besides, trading enterprises often use trademarks for products which they acquire from various sources. Therefore, products though not originating from one and the same enterprise, nonetheless have to correspond to certain common characteristics and quality standards which are applied by the owner of the trademark. A trademark owner thus guarantees that only the products that meet those standards and quality requirements will be offered under the trade mark. In such cases, the owner of the trademark is not responsible for producing the products, but rather for selecting those that meet these standards and requirements. It should be stated that even where the owner of the trade mark is the manufacturer of a product, in the manufacturing process, parts are frequently used which have not been produced by

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the owner of the trade mark, but which have been selected by him.

The fourth and last function of trademarks is to promote the marketing and sale of products and the marketing and rendering of services. Trademarks are not only used to distinguish or to refer to a particular enterprise or a particular quality, but also to advertise and market the products to consumers, as well as to stimulate sales. A trade mark which is to fulfil that function must be carefully selected, and must appeal to the consumer, create interest and inspire a feeling of confidence. It is for this reason that this function is sometimes called the ‘appeal or image function’.

6.1.3.8 JustificationTrademarkProtectionTrademark protection is justified for a number of reasons, which include: Firstly, trademarks enable the trademark owner to prevent others or his competitors from marketing identical or similar products under the same mark or under a confusingly similar mark. Trademark owner investment in development and marketing a product may become wasteful if his competitors use the same or a similar or a confusingly similar product. Where a competitor adopts a similar or identical trademark, customers could be misled into buying the competitor’s product(s) thinking it is for the trademark owner. This could not only lead to decrease in the trade mark owner’s profits and confusing the customers, but may also damage the reputation of the trademark more especially if the rival product is of inferior quality.

Secondly, trademark provides incentives to enterprises to invest in maintaining or improving the quality of their products. Trademarks play an important role in the branding and marketing strategies of an enterprise, contributing to the definition of the image, and reputation of the enterprise’s products in the eyes of consumers. The image and reputation of an enterprise create trust, which is the basis for establishing a loyal clientele and enhancing enterprise goodwill. Consumers often develop an emotional attachment to certain trademarks, based on a set of desired qualities or features incorporated in the products bearing such trademarks.

Thirdly, trademark may be licensed to other enterprises thereby providing additional source of revenue for the trademark owner or may be the basis for a franchising agreement.

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Fourthly, a trademark with a good reputation among consumers may also be used to obtain funding from financial institutions, such as banks or venture capitalists which are increasingly aware of the importance of brands for business success.

Fifthly, trademark facilitates consumers’ decision-making about their choice of products in the market. Consumers are faced continually with the problem of having to choose between goods or services that look alike, but whose superficial similarity may conceal differences in features and quality. While it is appropriate for sellers to offer goods with different levels of quality, consumers need a ‘shorthand’ method to identify these differences in quality in order to arrive at a satisfactory purchase decision. Trademark, therefore, helps consumers to reduce their search costs for the products.

Sixthly, apart from protecting business reputation and goodwill, trademark protects consumers from deception, that is, to prevent the buying public from purchasing inferior goods or services under the mistaken belief that they originate from or are provided by another trader.

Notwithstanding the above justifications, a trademark owner can use his monopoly right to prevent his competitors to develop or create trademarks that may be similar to his or may threaten them with infringements. Furthermore, trademarks are often perceived as a tax on goods or services in that they make products expensive and beyond the reach of the majority of the consumers. It may therefore be argued that trademarks may indirectly encourage counterfeit and imitation more especially for luxury goods such as watches and clothes, which consumers desperately need but cannot afford.

6.4 Other Types of Trademarks

6.4.1 Service MarksToday consumers are confronted not only with a vast choice of goods of all kinds, but also with an increasingly variety of services that are offered to consumers. There is, therefore, also the need for the signs that enable the consumers to distinguish the services offered by an enterprise from those of other enterprises. These signs are called service marks, and are often used by the service industry that include

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airlines, hotels, restaurants, banks, insurance, car rental firms, tourist agencies, laundries and cleaners.

It is important to note that a service mark is very similar in nature to a trademark. Both are distinctive signs. Trademarks distinguish the goods of one enterprise from those of others, while service marks distinguish the services of one enterprise from those of others. Since service marks are similar in nature to trademarks, the protection criteria for trademarks apply ‘mutatis mutandis’ to service marks. Furthermore, service marks can be registered, renewed and cancelled in the same way as trademarks. They can also be assigned and licenced under the same conditions as trademarks. It must be stated that service marks are not protected in Zambia.

6.4.2 Collective MarksA collective mark is generally owned by an association or co-operative which itself does not use the collective mark but whose members may use it to market their products. The collective body which owns the mark exclusively grants its members the right to use it if they comply with the requirements set, for example, quality standards, in the regulations concerning the use of the collective mark.

A collective mark may be an effective way of jointly marketing the products of a group of enterprises that may individually find it more difficult to make their individual marks recognized by consumers and/or to be accepted for distribution by many retailers. An example of a collective mark is Melinda Collective Mark used by 5,200 members of the 16 apple-producing co-operatives working in Valle di Non and Valle di Sole, Italy, who established the Melinda Consortium in 1989. Each producer has a right to use the mark which belongs to the Consortium as long as their apples meet the requirements set by the Consortium.

6.4.3 CertificationMarksA certification mark may be defined as a mark used to distinguish goods and services that comply with a set of standards and have been certified by a ‘certifying authority’. Certification marks are not confined to any membership and as such can be used by anyone whose products meet certain set standards. The main difference between certification mark and collective mark is that the former may be used

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by anybody who complies with the defined standards, while the latter may be used only by particular enterprises, for instance, members of the association which owns the collective mark.

An important requirement for the registration of a certification mark is that the entity which applies for registration is ‘competent to certify’ the products concerned. Therefore, the owner of the certification mark must be the representative for the products to which the certification mark applies. An example of a certification mark is the Woolmark. The Woolmark symbol is the registered certification mark of the Woolmark Company. The Woolmark is a quality assurance symbol denoting that the products on which it is applied are made from 100% new wool and comply with strict performance specifications set down by the Woolmark Company. It is registered in over 140 countries and is licenced to manufacturers who are able to meet these quality standards in 65 countries.

The Trade Marks Act provides for the registration of certification trademarks. Thus, under section 42 of the Trade Marks Act, a mark adapted in relation to any goods to distinguish in the course of trade goods certified by any person in respect of origin, material, mode of manufacture, quality, accuracy or other characteristic from goods not so certified shall be registerable as a certification trade mark in part C of the register in respect of these goods in the name, as proprietor of person.

6.4.4 Well-known MarksWell-known marks are marks that are considered to be well-known by the competent authorities of a give country. Well-known marks generally benefit from stronger protection. For instance, they will be protected even if they are not registered or have not even been used in a given territory. The main reason for the protection of well-known marks is to prevent companies from free-riding on the reputation of a well-known mark and/or cause damage to its reputation and goodwill.

It should be noted that section 32 of the Trade Marks Act allows a trade mark owner or proprietor of a trade mark which has become well-known in relation to goods to which it has been used or applied to register a defensive trademark, so as to prevent anyone from using

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or applying the trade mark in relation to other goods, if he fears that the use of the trade mark by anyone in relation to other goods is likely to indicate or create a connection in the course of the trade between him and those other goods in relation to the first mentioned goods. The defensive trademark registration for a well-known trademark is permitted, even if the trademark owner does not use or intend to use the trademark in relation to those other goods.

6.4.4.1 Trade NamesEnterprises may own and use one or several different trademarks to distinguish their goods and services from those of their competitors. However, they also need to distinguish themselves from other enterprises and for that purpose they will adopt a trade name. A trade name is, therefore, a name which identifies the enterprise and distinguishes it from other enterprises, for example, Larfarge Cement Plc. etc.

Trade names, trademarks and service marks perform the same distinguishing function. However, unlike trademarks and service marks, trade names distinguish one enterprise from others, quite independently of the goods or services that the enterprise markets or renders.

6.4.4.2 Passing offPassing off is a common law tort which can be used to enforce unregistered trademark rights. Passing off is concerned with the protection of business goodwill and reputation. Therefore, the law of passing off prevents one person from misrepresenting his goods or services as being the goods or services of the plaintiff and also prevents one person from holding out his goods or services as having some association or connection with the plaintiff when it is not true. A cause of action for passing off is a form of intellectual property enforcement against the unauthorized use of a mark which is considered to be similar to another party’s registered or unregistered trademarks, especially where an action for trademark infringement based on a registered mark is unlikely to be successful due to the differences between the registered trade mark and unregistered mark.

Passing off and trademark law deal with overlapping factual situations, but deal with them in different ways. Passing off does not confer

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monopoly rights to any marks or names. It does not recognize them as property in their own right. Instead, the law of passing off is designed to prevent misrepresentation to the public where there is some sort of association between the plaintiff and the defendant. Where the defendant does something so that the public is misled into thinking the activity is associated with the plaintiff and as a result the plaintiff suffers some damages. Under the law of passing off it may be possible for the plaintiff to initiate action against the defendant

6.4.4.3 Geographical IndicationsA geographical indication is a sign used on goods, usually agricultural products, that have a specific geographical origin and possess qualities or a reputation that are due to that place of origin. Mostly commonly, a geographical indication consists of the name of the place of the origin of the goods. ‘Champagne’, ‘Tequila’, ‘Roquefort’, ‘Chianti’, ‘Porto’, ‘Sheffield’, and ‘Havana’ are some of the examples of well-known names that are associated throughout the world with products of a certain nature and quality. One common feature of all these names is their geographical connotation; that is to say, their function of designating existing places, towns, regions, or countries. However, when we hear these names, we think of products rather than places they designate.

The purpose of geographical indication is therefore, to point to a specific place or region of production that determines the characteristic qualities of the product that originates from that place or region. It is important that the product derives its qualities and reputation from that place, and since those qualities depend on the place of production, a specific ‘link’ exists between the products and their original place of production.

Geographical indications are protected in order to avoid misappropriation, counterfeit or forgery. Geographical indications are understood by consumers to denote the origin and the quality of products. Many of them have acquired valuable reputations, which, if not adequately protected, may be misrepresented by dishonest commercial operators. False use of geographical indications by unauthorized parties is detrimental to consumers and legitimate producers. The former are deceived and led into believing they are

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buying a genuine product with specific qualities and characteristics, while they are getting, in fact, a worthless imitation. The later suffers because valuable business is taken away from them and the established reputation of their products is damaged.

6.4.4.4 Trade Secrets The law of breach of confidence is concerned with the protection of secrets or commercially valuable information that may have been communicated or obtained in confidence. The action for breach of confidence protects confidential information by preventing persons to whom the said information has been divulged in confidence from using that information to gain unfair benefit for themselves, or further disclosure of such information.

There are various types of information that can be considered to be confidential in nature because the subject is one which in normal circumstances would generally not be disclosed to the public. However, in practice, confidential information generally tends to fall into three categories; namely, trade secrets, government secrets and private personal information.

All businesses have trade secrets. Thus any confidential business information that provides an enterprise with a competitive edge may be considered to be a trade secret. These may include the manufacturing processes, techniques and know-how, lists of customers, formulas for producing products, personal records, financial information, manuals, ingredients, business strategies, business plans, marketing plans, information about research and development activities. The unauthorized use of such information by persons other than the holder is considered unfair practice and a violation of the trade secret. Notable examples are the formula for making Coca-Cola and the source code for windows. The law of confidence imposes a duty of confidentiality on any person who is connected with the production process. The protection provided by the law of confidence lasts till the process is discovered by another inventor separately.

6.5 Protection Against Unfair CompetitionThe last object of the protection of industrial property is the protection against unfair competition. Such protection required under Article 10

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bis of the Paris Convention for the Protection of Industrial Property, is directed against acts of competition that are contrary to honest practices in industrial or commerce. The following in particular constitute acts of unfair competition in relation to industrial property:

(i) All acts of such a nature as to create confusion with the establishment, the

(ii) goods or the industrial or commercial activities of a competitor;

(iii) False allegations in the course of trade of such a nature as to discredit the establishment, the goods or the industrial or commercial activities of a competitor; and

(iv) Indications or allegations the use of which in the course of trade is liable to mislead the public as to the characteristics of goods.

The protection against unfair competition supplements the protection of inventions, industrial designs, trademarks and geographical indications.

6.6 Dealings in Intellectual PropertyThe holder of IP rights (patents, copyright, trademarks, and designs) can deal with the said rights in various ways such as:

(i) Exploit, work, or use the IP rights himself or herself

(ii) Sale the IP rights

(iii) Assign the IP rights

(iv) License the IP rights, that is, the permission of the owner of a patented

(v) invention to another person or a legal entity to perform one or more ‘acts’

(vi) which are covered by the exclusive rights to the patented invention,

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(vii) trademark, designs, or copyright.

6.7 Enforcement of Intellectual Property Rights

Enforcement of IP rights remains a serious challenge in most jurisdictions often because of lack of effective legal system; lack of respect of IP rights because of lack of awareness of such rights, or because of greed or criminal motive of profiting from the work of others. The purpose of IP protection and enforcement is to:

(i) Ensure that the owner of the IP rights the benefits of the invention and creations.

(ii) Preserve the legal validity of the IP rights before the relevant public Authority

(iii) Prevent infringement from occurring or continuing in the marketplace,

(iv) thereby avoiding damage such as loss of goodwill or reputation;

(v) Seek compensation for actual damage, for example, loss of profit, resulting from any instance of infringement in the market place;

(vi) Protect the general public from buying illegal, pirated and counterfeit products which may pose serious risks to health and safety of individuals

The burden of enforcing IP rights mainly lies on the holder or owner of such rights. It is up to the IP right-holder to identify any infringement or counterfeit of the IP rights and decide what measures should be taken. However, due to the difficulties the IP right-holders encounter in enforcing their rights most governments have not only established systems and institutions to facilitate the enforcement of IP rights but also adopted measures in their national legal systems in line with international treaties such as Trade Related Aspects of Intellectual Property (TRIPS) Agreement.

Generally the enforcement of IP rights can take four basic forms, which are also known as remedies to IP infringement:

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(i) Administrative enforcement, such as seizure of infringing goods by a custom office, Alternative Dispute Resolution (ADR) such as IP Arbitration;

(ii) Criminal enforcement, in which the state, generally through the police, is the moving party in a criminal action against the infringer;

(iii) Civil enforcement, in which the IP right holder, or someone in possession of valid rights, such as an assignee or licensee, takes prescribed legal action, such as in court by filing a civil action against the infringer, and perhaps seeking an injunction;

(iv) Technological enforcement, in which producers of products and services employ technological means to protect IP rights against infringement (for example, encryption of digital copyright works).

6.7.1 Comparison of Various Enforcement Measures

Measures Moving Party

Relevant IPR

Advan-tages

Disadvan-tages

Emerging Trends

Adminis-trative

Cus-toms office

Trade-mark,Copyright

Rela-tively Expedi-tious

Effective only in ob-vious cases

Regional co-operation on border control

Criminal Police Trade-mark,Copyright

Effective relatively expedi-tious

Limited to Serious cases

Increase of fines, more raids for edu-cational effect

Civil IPR Holder

All IPRs Reason-able remedies

Time con-suming and expensive

IPR special court, ADR

Techno-logical

Pro-ducer of IPR works

Trade-mark,Copyright, Patents

Practical speedy

Vulnerable to hacking

Standardiza-tion efforts for water-marking

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6.8 International Framework of Intellectual Property The international system of protection of IP rights traces its roots from two fundamental IP treaties namely the Paris Convention for the Protection of Industrial Property and Berne Convention for the Protection of Literary and Artistic Works which were entered into force in 1883 and 1886 respectively. Since then the said treaties have undergone various amendment, and new treaties in the two branches of IP namely Copyright and Related, and Industrial Property have been adopted. Prominent among them is the Trade Related Aspects of Intellectual Property (TRIPS) Agreement which has not only revolutionized the way IP rights should be protected but also emphasized the link between IP and trade.

The TRIPS Agreement has therefore raised or set the minimum standards of legal protection of the IP rights by the member states of World Trade Organization (WTO). Besides the TRIPS Agreement for the first time introduced the enforcement mechanisms for enforcement of IP rights which member states must incorporate in their legal system. Such enforcement measures include civil and administrative procedures and remedies; provisional measures; criminal procedures, and border measures.

6.9 Challenges of Intellectual Property LawIP branch of law faces a number of challenges, which include:

(i) Though IP is not a new subject or branch of law, it is least known branch of law or subject of law not only among the general public including the inventors and creators of IP works but also among the legal fraternity. In short the level of IP awareness is extremely low among the general public.

(ii) Legal regime or framework governing IP is outdated or not I existence at all. For instance in Zambia, apart from the Copyright Act which was enacted in 1994, the Patents Act, Trademarks Act, and Designs Act have not been amended or updated since they were enacted in 1956 before even Zambia gained its independence in 1964.

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(iii) Lack of Government commitment to policy and legal reform in the field of IP, for example, though the TRIPS Agreement has put mandatory time frame within which countries must amend, enact or update their IP legal regime in line with the standards set in the said Agreement few countries have complied.

(iv) Lack of Understanding and appreciating the social, cultural and economic benefits and commercial value of IP by not only the government officials or policy makers but also by the general public. For example, Japanese Patent Office Annual Report 2001 notes that: “knowledge about the protection of IPRs is important to every citizen in order to ensure that Japan establishes for the 21st century a society based on creative science and technology”.

(v) Lack of national IP policy frameworks and strategies. For example, Zambia does not yet have a policy on IP

(vi) Lack of mainstreaming IP in the primary and tertiary education as well as all activities or sectors of the economy. For example, the EU policy on IP education is that all students in science, engineering or business to receive at least basic training on IPRs and technology transfer.

(vii) Lack of incentives and awards for inventors and authors, as well as for societies and collective organizations that invent, create and use IP assets.

6.10 Way Forward/Conclusion The effective and sure way to increase or promote IP awareness at all levels of countries is to demonstrate the value of IP and of the potential positive impact that it can bring to society or our respective countries. Awareness of the potency of IP as a source of economic, social and cultural dynamism will ensure that:

(i) Government officials and agencies (such as Law Reformers) formulate their policies and administrative and management programs with a view to optimizing the use of, and respect for, IP rights;

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(ii) The private sector ranging from Small and Medium sized enterprises to multinationals, leverages the value of its IP assets and recognizes the value of upholding IP rights in increasingly knowledge based industries and economies;

(iii) The public understands the value and benefits of purchasing legitimate goods and services, thereby boosting local industries and increasing the tax base.

The absence of an IP culture in a nation results in a stagnant or receding economy, a reduction in creativity and inventiveness and may scare foreign direct investment. However, the creation of an IP culture in countries that do not yet have developed IP assets will require pro-active policies which include the following:

(i) An IP audit to assess the current status of IP assets;

(ii) The preparation of a national IP policy or strategy, integrated with scientific, cultural, trade, economic, and educational policies;

(iii) An IP legal reform

(iv) Incentives and awards for inventors and authors, as well as for societies and collective organizations that develop and use IP assets.

However, in adopting and implementing the aforesaid pro-active policies attention must be paid to all the elements needed to create and sustain the growth of an IP culture namely human resource development, education, marketing, up-to-date national IP offices and administrations, involvement of civil society organizations, promotion of innovation, culture and IP at universities and research centers, programs to develop practical skills such as licensing, well-drafted laws and effective enforcement.

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REFERENCES

♦ Kanja Mpundu George, Intellectual Property Law, UNZA Press, Lusaka, 2006

♦ Kanja Mpundu George, ‘Role of Copyright in the Promotion of Economic, Social and Cultural Development, paper presented to a Colloquium on Protection and Enforcement of Intellectual Property organized by WIPO in Cooperation with the Government of the Republic of Zambia, held in Lusaka, 31 March to 2 April 2004

♦ Kanja Mpundu George, ‘Intellectual Property’, paper presented to the Postgraduate Deans of the University of Zambia, at the Postgraduate Studies Retreat held at Kafue Gorge on 7-8 February 2006.

♦ Kanja Mpundu George & Harrison Mwakyembe, Implications of the TRIPS Agreement on the Access to Cheaper Pharmaceutical Drugs by Developing Countries: Case study of South Africa v. The Pharmaceutical Companies, Zambia Law Journal, Vol. 32, (2002), pp. 111-147

♦ Kamil Idris, Intellectual Property as a Powerful Tool for Economic Growth, WIPO Publication No. 888, Geneva

♦ Bainbridge, D, Intellectual Property (3rd Edition), London, Pitman Publishing (1996)

♦ Sterling, J.A.L, World Copyright Law, London, Sweet & Maxwell (1998)

♦ WIPO Intellectual Property Handbook, WIPO Publication No. 489 (E), Geneva: WIPO (2001)

♦ Secrets of Intellectual Property: A guide for Small and Medium-Sized Exporters; International Trade Centre and WIPO, Geneva (2004)

♦ Vaver, D. Principles of Copyright: Cases and materials: Geneva: WIPO & UNDP publication (2002)

♦ Kamil Idris, and Hisamitsu Arai, Intellectual Property –Conscious Nation: Mapping the Path from Developing to Developed, WIPO Public No. 988(E), Geneva

♦ An Introduction to Trademarks for Small and Medium-Sized Enterprise, WIPO Publication No. 900(E), Geneva (2006)

♦ An Introduction to Patents for Small and Medium-Sized Enterprise, WIPO Publication No. 917(E), Geneva

♦ An Introduction to Industrial Designs for Small and Medium-Sized

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Enterprise, WIPO Publication No. 498(E), Geneva ♦ What is Intellectual Property?, WIPO Publication No. 450(E),

Geneva♦ Guidelines on Developing Intellectual Property Policy for

Universities and R & D Institutions in African Countries, WIPO Publication No. 848(E), Geneva

♦ Agreement Between WIPO and WTO (1995) and TRIPS Agreement (1994), WIPO Publication No. 223(E), Geneva

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