An evaluation of policy and legislative framework on Investment expropriation in Zambia against International Instruments

Abstract

This research examines the policy and legislative framework on investment expropriation in Zambia, against international law instruments. It outlines the investment policy and law on investment expropriation at the international, regional and national levels. Finally, this research identifies the gaps in the expropriation policy and legislation in Zambia in relation to international investment law instruments and assesses whether the policy and law benefit both the Zambian citizens and investors. The main question investigated in this research was whether the investment expropriation policy and law in Zambia contains any gaps, and to determine the extent to which these gaps could be sealed in order for the policy and law to have tangible benefits to the Zambians. The research employed a social legal approach to analyse the policy and legislative framework on investment expropriation in Zambia. The methods of data collection were triangulated between secondary and primary data collection methods, as a way of broadening the scope of investigation. Secondary data collection included consultations of a wide range of documents. Sources of data included United Nations General Assembly Resolutions and Instruments, Articles from journals, books, internet materials and so on. Primary data included administration of an interview guides to a cross section of Respondents. The Respondents were purposively selected based on their expertise. Interviews were both formal and guided by interview guides. Formal interviews were tape recorded and later transcribed and analysed, using thematic analysis techniques. The main findings of this research are as follows: (a) the Zambian policy on investment expropriation is not in line with international investment expropriation policy. On the other hand, the legislative framework reviewed is in line with international investment expropriation law save for the Mines and Minerals Development which has no provision on investment expropriation; (b) secondly, the policy on investment expropriation as contained in the 7NDP,RSNDP and MRD Policy are too broad and addresses investment in general, thereby creating gaps; and (c) thirdly, the law as contained in the Zambia Development Agency, Mining and, Land acquisition are not comprehensive enough to achieve the objectives set under international law, thus creating gaps between international law expectations and national law and further that it does not differentiate between the two opposing concepts of expropriation and regulation. The research notes that investment policy and legislation in Zambia on expropriation is inadequate though some of the key policy considerations and principles of international investment law appears to have been domesticated to a certain extent. The research recommends that there is need for government to come up with a comprehensive investment policy and law on expropriation that takes into account Zambian history and capacity as a nation, as well as differentiating between the two opposing concepts of expropriation and regulation. KEY WORDS: Compensation, expropriation, investment, public interest, regulation.