Thousands of Zambian farmers, wanting to claim against a multinational giant for allegedly polluting their water with copper mining effluent, will have their day in court – in the United Kingdom. The UK’s Supreme Court this week ruled that the farmers could sue Vedanta and its Zambian subsidiary, Konkola Copper Mines, in the UK. The decision has been hailed as having the potential to affect many other cases involving international companies exploiting third world minerals and gas.
Read the judgment
WHEN the Supreme Court of the United Kingdom handed down its unanimous judgment in the case of Vedanta v Lungowe this week, the decision instantly became the most-discussed issue in that part of social media concerned with international human rights.
The case concerns almost 2000 Zambians who live in the district of Chingola. As the Supreme Court put it, they are “by any standards, very poor members of rural farming communities served by watercourses which provide their only source of water for drinking and irrigation for their crops.” According to these farmers, both their health and their farming have been damaged by the toxic material discharged into these watercourses by the Nchanga Copper Mine.
Widely believed to be the second largest such mine in the world, Nchanga is owed by Konkola Copper Mines (KCM) – the largest private employer in Zambia. Konkola’s “ultimate parent company”, however, is Vedanta Resources PLC, a multinational group listed on the London Stock Exchange and with interests across four continents.
The Zambian farmers want to sue Vedanta as well as KCM, as they claim that the parent company must take responsibility for the results of KCM’s actions in polluting the water.
This week’s decision by the UK court dealt with the single issue of where the legal action against Vedanta and KCM should be heard. Vedanta strongly denies there are grounds for it to stand trial, and that even if there are such grounds, the case should be heard in Zambia and not in the UK.
A high court judge and the Court of Appeal both rejected Vedanta’s argument, but the company then took the issue further, arguing their point of view over two days in January. On Wednesday this week, the justices gave their decision on whether the case could be heard in the UK: there were no grounds to overturn the earlier decisions permitting the matter to be argued in the UK, said the court.
Among the four crucial issues to be decided by the Supreme Court was whether there was “a real, triable issue” against Vedanta, with the judges agreeing that there was enough material to show that the claims of the Zambian farmer “was arguable”.
Was there a “real risk” that substantial justice could not be obtained in Zambia?
If you take a look at the judgment itself you will see that the Attorney General of Zambia was admitted as a friend of the court and the decision quotes several decisions of the Zambian judiciary. This is just one sign that the UK court was aware of the sensitivity of the question and not appearing to criticize the Zambian legal system or, as the high court judge said in his earlier decision, to engage in “colonial condescension”.
But instead of critiquing the quality of justice dispensed in Zambia, the court looked at the question how to fund a large group claim brought by people “in extreme poverty”. It was also concerned that within Zambia there were not “sufficiently substantial and suitably experienced legal teams” to manage litigation of this size and complexity particularly against KCM which had a track record suggesting that it would prove “an obdurate opponent”.
The judges said they would have found that the case should “properly” have been heard in Zambia if it were not for their concern about funding and representation.
It is a complex judgment that some commentators have said does not necessarily widen the way for other communities to have their cases easily heard in the UK. Others, however, have welcomed it as a significant step forward in ensuring that parent companies may not simply walk away from destruction and pollution caused by their local outfits.
Leigh Day, the UK legal firm handling the Zambian farmers’ claim, commented that the ruling could have implications for companies that make public commitments about their responsibilities to the environment and the communities where their subsidiaries operate, but then fail to put these promises into action.
In its response, Vedanta pointed out that the decision did not deal with the merits of the claim and that “at the appropriate time”, the company, and KCM, would defend themselves against the farmers’ allegations.
The decision could impact on a number of cases involving international companies which either themselves, or via subsidiaries, operate in other parts of the world – African and India among others – and where the claimants want their dispute heard in the courts of the country where the international company is based.
One commentator, Gabrielle Holly, writing for specialist law firm Omnia Strategy, said it was still uncertain whether the farmers would win their claims against Vedanta and KCM. “But for now the possibility of parent company liability remains alive and well in the UK,” she concluded.
The delivery of the Supreme Court’s decision came as a number of activist groups began a new campaign calling for an effective law that would require companies and investors “to prevent human rights abuses, worker exploitation and environmental harm in their global operations”.
- Newsletter, Judicial Institute for Africa (Jifa), 10 April 2019