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Supplement
to the Republic
of Zambia Government
Gazette
dated the 24th December 1999
[No. 12 of
1999 329]
GOVERNMENT OF ZAMBIA
ACT
No. 12 of 1999
Date of Assent: 23rd December, 1999
An Act to amend the Environmental
Protection and Pollution Control Act
[24th December,
1999]
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ENACTED by the Parliament of Zambia
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Enactment
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1. This Act may be cited
as the Environmental Protection and Pollution Control (Amendment) Act, 1999. and shall be read as one with the Environmental Protection
and Pollution Control Act, in this Act referred to as the principal Act.
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Short
title
Cap. 204
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2. Section
two of the principal Act is amended-
a)
by the deletion of the definition of "
conservation" and the substitution therefor of the following:
“conservation"
means the sustainable management and use of natural resources and the
environment so that they continue to provide the required benefits to man and
other living things;
b)
by the insertion in the appropriate places of the following new
definitions:
"
Director of Public Prosecutions" means the person appointed Director of
Public Prosecutions under article fifty-six of the Constitution;
"
inspector" means the person appointed inspector under section eighty-three:
and
“permit" means a document authorising activities as
specified under this Act.
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Amendment
of Section 2
Cap.
1
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3.Section
four. of the principal Act is amended-
(a) by the deletion of subsection
(I) and the substitution therefor of the following subsections:
.. (1) The Council shall consist
of the following members appointed by the Minister:
(a) the Chairman;
(b) .a representative from the
following Ministries or organisations:
i.
the ministry responsible for environment and natural resources;
ii.
the ministry responsible for mines and minerals development;
iii.
the ministry responsible for local government and housing;
iv.
the ministry responsible for labour and social security;
v.
the ministry responsible for education;
vi.
the ministry responsible for health:
vii.
the ministry responsible for energy and water development;
viii.
the ministry responsible for food agriculture and fisheries;
ix.
the Zambia Wildlife Authority;
x.
the Chamber or Mines;
xi.
the Zambia Association of Chambers of Commerce and Industry:
xii.
a non-governmental organisation concerned with the conservation of
nature designated by the Chair- person of that organisation:
xiii.
the national Institute for Scientific and
Industrial Research; and.!
xiv.
the Zambia Bureau of Standard
(2) The members shall appoint a
Vice-Chairman from amongst themselves."; and
(b) by
the re-numbering of subsection (2) as subsection (3).
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Amendment
of section 4
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4. Section five of
the principal Act is amended:-
(a) by the deletion of
subsection (1) ,and the substitution therefor of the following subsection:
"(1) A member shall hold
office for a period of three years and shall be eligible for re-appointment
but shall not hold office for more than two terms ".
(b) by the deletion of
the word" or " at the end of paragraph (f)
(c) by the insertion
after paragraph (f) of the following new paragraph:
"(g) if he ceases to be a
representative of the organisation or Ministry that appointed him; or "
and
(d) by
the re-numbering of paragraph (1) as paragraph (h).
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Amendment
of Section 5
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5. The principal Act is
amended by the deletion of the word . protection " wherever it appears and substitution
therefor of the word" management ".
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General
Amendment of Act
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6. Section six of
the principal Act is amended –
(a) in subsection (1)-
(i) by the deletion of the
word" protect" and the substitution therefor of the word"
conserve "; and
(ii) by the insertion of the
word" prevent" before the words" and control pollution ";
(b) in subsection (2)-
i.
hy deletion in paragraph ((/) of the word" good" and the
substitution therefor of the word" sustainable ";
ii.
by the insertion in paragraph (b) of the words .. preventing
and" between the words to at" and "controlling ";
iii.
by the deletion in paragraph (d) of the words
"environmental conservation, protection and pollution control to and the
substitution therefor of the words" environmental conservation,
prevention and control of pollution ";
iv.
by the deletion in paragraph (g) of the words ,. protection of
the environment and control of pollution" and the substitution therefor
of the' words" management of the environment, prevention and control of
pollution "
v.
by the deletion in paragraph (m) of the words" and the
protection ";
vi.
by the deletion in paragraph (q) of
the words " environmental and natural resources use and protection ,. and the substitution therefor of the words; "
sustainable management and use of the natural resources and the
environment".
vii.
by the, deletion in paragraph (q) of the word
"protection"; and
viii.
by the deletion in paragraph (t) or
the words, ,. protection of the environment and the
control of pollution ., and the substitution therefor of the words
"management of the environment, prevention and control of
pollution ".
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Amendment
of Section 6
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7. Section twenty-one of
the principal Act is amended ill subsection (3)-
(i)
by the deletion of the words" Council ,and any Minister"
,and the substitution therefor of the words, “Council I and the
Minister": and
(ii)
by the deletion in paragraph (d) of the word
"proper", and the substitution therefor of the word" sustainable"
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Amendment
of section 21
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8. Section twenty-three
of tile principal Act is ,amended in paragraph n (c) by the
deletion of the word "preservation" and the substitution therefor
of the word" conservation ".
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Amendment
of section 23
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9. Section thirty-six of
the principle Act is amended in paragraph (a) by the deletion of the
words "air ,Ambient" and the substitution
therefor of tile words" ambient air ".
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Amendment
of section 36
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10. The principal Act is
amended by the deletion of section forty-two and the substitution
therefor of the following section:
"42. An owner or operator of
an undertaking, industry or business emitting or likely to emit a pollutant
which is likely to cause air pollution or whom the inspectorate so requests".
shall ,apply to the inspectorate for a permit or
licence".
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Repeal
and replacement of section 42
Permit
or license to emit pollutants
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11. Section forty-six of the principal Act
is amended by the insertion after the word" licence
" of the words" or permit ".
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Amendment
of section 46
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12. Section.
forty-seven of the principal Act is amended-
(a) by the deletion or the
definition or" licence " and the substitution therefor of the
following definition:
" licence" means a
licence' issued under this Part to transport waste or operate a waste
disposal site or plant, or to generate or store hazardous wastes: and
(b) by the deletion of the
definition of" management" and the substitution therefor of the of
the following definition:
“waste
management " means the collection, transportation and disposal of waste.
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Amendment
of section 47
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13. Section .forty-nine of
the principal Act is .Amended in paragraph (k) by the insertion after the
word" services" of the words "on waste management”.
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Amendment
of section 49
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14. Section .fifty of the
principal Act is amended by the deletion of subsection (3) and the
substitution therefor of the following subsection:
“(3) A person shall not operate a
waste disposal site or plant or generate or store hazardous waste without a
permit or licence."
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Amendment
of section 50
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15.Section fifty-one of the
principal Act is amended by the deletion of subsection (1) and the
substitution therefor of the ( following subsection.
“(1) The inspectorate may. on application, grant a licence to generate or store
hazardous waste or to transport or operate .waste disposal site or plant
subject to such conditions as it may impose."
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Amendment
of section 51
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16. Section fifty-two of
the principal Act is amended- :
(a) in subsection (1) by
the insertion of the words" or store" between the words
"generate" and "hazardous " and
(b) by the deletion of
subsection (2) and the substitution therefor of the following subsection:
“(2) An application for licence
made under subsection (1) shall only be granted after consultation with the
relevant local authorities:
Provided that where a local
authority makes the application, the application
shall be granted with the approval of the town and country
planning authority.”
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Amendment
of section 52
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17. Section fifty-nine of the principal Act
is amended in subsection (1) :-
(a) by the insertion after
the word" import" of a comma and the word "export"; and
(b) by the insertion
after the word" importing" of the word "exporting"
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Amendment
of section 59
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18. Section sixty-four of
the principal Act is amended-
(a) in
subsection (2) by the insertion after the words" deliver for importation
to " of the words" export, deliver for exportation to. "; and
(b) in subsection (3) by
the deletion of the full stop at the end of that subsection and the
substitution therefor of the words" or to both ".
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Amendment
of section 64
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19. Section sixty-five
of the principal Act is amended by the deletion of subsection (4).
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Amendment
of section 65
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20. Section .seventy-flour
of the principal Act is amended in subsection (1) by the deletion of the
words “seventy-five" and the substitution therefor of the word"
ninety".
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Amendment
of section 74
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21 Section eighty-one of
the principal Act is amended by the insertion after the word"
prevention" of the words" and control".
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Amendment
of section 81
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22. Section eighty-four
of the principal Act is amended by the insertion immediately after
subsection (4) of the following new subsections:
"(5) An inspector may seize
or detain any substance, material, matter, vehicle, aircraft or boat where-
a.
the inspector has reasonable grounds to believe that the substance,
material, matter. vehicle, aircraft or boat is causing pollution contrary to
this Act; or
b.
( b) the inspector has reasonable grounds to believe that the
vehicle or boat is transporting or hoarding any matter or article causing or
likely to cause pollution contrary to the requirements of this Act.
(6) Where an inspector seizes. or detains any substance, material, matter, vehicle,
aircraft or boat under subsection (5), the inspector shall give the person
from whom the substance, Material, matter, vehicle, aircraft or boat is
seized, a notice in the prescribed form.
(7) Where-
(a) the Director of
Public Prosecutions advises the Inspectorate in writing that no prosecution
shall he instituted consequent upon any search or seizure under this
Act; or
(b) the person from whom
any substance, material, matter, vehicle, aircraft or boat was seized is not
convicted of an offence under this Act;
the
inspector shall return the substance, material, matter, vehicle, aircraft or
boat to the owner or the person from whose custody the substance was taken
within ten days from the date of receipt by the Inspectorate of such
information."
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Amendment
of section 84
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23, The principal Act is
amended by the insertion immediately after section eight,-four of the following
new sections:
“84A. (1) An inspector or police
officer may without warranty arrest any person and keep this person in
custody where--
(a)
the person is found committing an offence or is reasonably
suspected of having committed an offence under this Act;
(b)
upon being requested by the inspector or the police officer, the
person willfully fails or refuses to furnish that person’s name, address or
other relevant information to the satisfaction of the inspector or Police
Officer; and
(c)
the inspector or police officer has reasonable grounds to believe
that unless arrested, the person will-
(i)
escape or cause unreasonable delay, trouble
or expense in being made answerable to justice.
(ii)
interfere with the witness, or
(iii)
tamper with or destroy relevant evidence or
,material.
(2) Subject to subsections (3)
and (4), any person arrested under subsection (1) shall be taken before a
court of competent jurisdiction as soon as is practicable, and shall not be
detained for longer than is reasonably necessary for the purpose.
(3) Where an inspector arrests a
person under subsection (1), the inspector shall hand over the person to a
police officer,, or surrender that person to a
police post or station within twenty-four hours.
(4) Where any person is arrested
under subsection (1) or surrendered to a police post or station under
subsection (3), a police officer shall if it does not appear practicable to
bring that person before a court within twenty-four hours after the person
was so taken into custody, inquire into the case, and unless the offence
appears to the police officer to be of a serious nature release the person,
on executing a bond, with or without sureties for a reasonable amount to
appear before a competent court at a time and place to be named in the bond;
but where any person is retained in custody by a police officer that person
shall be brought before .1 court as soon as is practicable.
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Insertion
of new section 84A and 84B
Power
of Arrest
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84B. An inspector or
officer of the Council shall not be liable in respect of any act done or
omitted to be done in good faith by the inspector or officer in the exercise
of duties and powers under this Act or any other written law."
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Immunity
of officers of the council
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24. Section eighty-five of
the principal Act is amended in subsection (1)-
(a) by the deletion in
paragraph (a) of the word "or" at the end of that paragraph;
(b) by the insertion
immediately after paragraph (a) of the following paragraph:
"(b) assaults an
inspector in the lawful exercise of duties and powers under this Act; and;
"or'
(c) by the re-numbering of
paragraph (b) as paragraph (c)
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Amendment
of section 85
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25. Section ninety-one
of the principal Act is amended-
(a) in subsection (1) by
the deletion of the word" fifteen ".and the, substitution therefor
of the word" sixty"; and
(b) in
subsection (2) by the deletion of the word “seven thousand, five
hundred" and the substitution therefor of the words" thirty
thousand ".
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Amendment
of section 91
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26. The principal Act is
amended. by the insertion immediately .after section ninety-one of the
following new sections:
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Insertion
of new sections 91A, 91B, 91C, 91D and 91E.
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91A. (1) Subject to the other
provisions of this section. where any person is
convicted of an offence under this Act, the court may, on application by an
inspector or police officer. in addition to any
other penalty imposed, declare any matter, article, vehicle. aircraft or boat used in the commission of the offence to
be forfeited to the State without compensation and shall order the matter. article, aircraft. vehicle or
boat to be disposed of by the Inspectorate by public auction.
(2) The court may, where a police
officer or an inspector makes an application under subsection (1) ,make an order, hereinafter referred to as a conditional
order, to the effect that un less any person other than the convicted person
claims any right of ownership in the matter, article, vehicle, aircraft or
boat within a period of three months from the date of the order. the matter, article. vehicle. aircraft or boat shall be forfeited to the State.
(3) An inspector shall, within a
period of thirty days from the date of the order. cause
a notice of the order to be published in the Gazette and in at least
three issues of a newspaper of general circulation in the area where the
offence was committed.
(4) The notice referred to in
subsection (3) shall be in the prescribed form.
(5) The Inspectorate shall. where the article. matter,
vehicle, aircraft, or boat is registered in the name of any person other than
the convicted person. within seven days after the
publication of the notice in the Gazette. cause
a copy to be sent by registered post to the person at the address indicated
on the register.
(6) A person who claims any right
of ownership in the matter, article, vehicle, aircraft or boat may, within
the period stipulated under subsection (2) , serve
upon the Inspectorate and lodge with the clerk of the court an application,
in writing, for the discharge of the conditional order setting out the claim
of ownership in the matter, article, vehicle, aircraft. or
boat.
(7) The clerk of the court shall
where an application is lodged under subsection (6)-
(a)
fix a date for the hearing, not less than one month after the
lodgement of the application; and
(b)
within seven days of the lodgement, cause
notice of the hearing of the application to be served upon the Inspectorate.
(8) In any proceedings brought
under subsection (6), the onus of proof shall be on the applicant and no
order discharging the conditional order shall be made unless the applicant
has adduced evidence and proved to the satisfaction of the court that the applicant
was not in any manner privy to the offence and that the matter, article,
vehicle, aircraft, or boat was at the time of the commission of the offence,
used for such purpose without the applicant's knowledge or consent, and
without any negligent disregard on the part of the applicant of its U1.e by
the convicted person.
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“Forfeiture
on conviction |
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(9) Where, upon any application
made under subsection (6) the court is satisfied that the matter, article,
vehicle, aircraft or boat is owned by jointly by the claimant and the
convicted person or is the subject matter of a hire purchase agreement
between the claimant and the convicted person and the claim- ant has
discharged the onus of proof required under subsection (8), the court shall
declare forfeited to the State all of the estate or interest of the convicted
person in and to the article, matter, vehicle, aircraft or boat, or all the
rights therein accrued to the claimant under the hire purchase agreement or
under the Hire Purchase Act and order the estate, interest or rights or to be
disposed of as the court may consider fit.
( 10) Except with the consent of
the court, any right vested in any claimant under any hire purchase
agreement, or under the Hire Purchase Act to repossess any matter, article,
vehicle, aircraft or boat which is subject to a conditional order made under
subsection(2), shall be suspended pending the determination of any
application brought under subsection (6), and in the event of the court
declaring the rights therein accrued to the convicted person to be forfeited
to the State, the accrued right to repossess the matter, article, vehicle,
aircraft or boat shall not be exercisable against the Government or the
Council.
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Cap
399
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91B. (1) Where any matter,
article, vehicle, aircraft or boat is seized under this Act in relation to or
in connection with the commission of an offence under this Act and-
(a)
the person suspected of having committed the offence is unknown;
(b)
the person suspected of having committed the offence cannot be
found for the purpose of service of the process of the court charging that
person with the offence: or
(c)
having been served with such process, the person suspected of
having committed the offence fails to appear in answer to the charge;
the Inspectorate may, one month
after publication of a notice of its intention so to do, in an issue of a
newspaper of general circulation in the district in which the offence is
alleged to have been committed, apply by way of an ex-parte original
application, to the court for an order declaring the matter, article,
vehicle, aircraft or boat, to be forfeited to the State without compensation
and ordering it to be disposed of as the court may consider fit.
(2) Where any person claims any
right of ownership in any vehicle, aircraft or boat to which a notice
published under subsection (1) applies, that person may, within one month
after the date of publication, lodge with the clerk of the court a claim of
ownership and serve a copy of the notice upon the Inspectorate, and the
provisions of section ninety-one A shall apply, with the necessary
modification, to the claim of ownership.
(3) Where any matter, article,
vehicle, aircraft or boat is seized under this Act, in relation to or in connection
with the commission of any offence, the Inspectorate may apply to the court
by way of ex-parte original application, for an order for the
immediate disposal by sale or otherwise of the matter, article, vehicle,
aircraft or boat .and the court may order the sale.
(4) Where the matter, article,
vehicle, aircraft or boat is sold, the proceeds shall be held by the
Inspectorate pending the determination of any proceedings brought in respect of
the offence and shall be dealt with by the Inspectorate as the court may
direct.
(5) Where the person suspected of
having committed the offence is unknown or cannot be found for the purpose of
service of the process of the court, subsection (1) shall apply with the
necessary modifications to the proceedings.
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Disposal
of matter, article, vehicle, aircraft or boat
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91 C. (1) The Director of
Public Prosecutions may at the request of the Council in writing appoint by
name or rank any I inspector to undertake or assist in undertaking and
prosecuting criminal proceedings in respect of any offence alleged to have
been committed by any person in contravention of this Act and may at any
time, without assigning .my reason cancel any such appointment.
(2) In undertaking or prosecuting
any proceedings under subsection (1), the inspector shall act in accordance
with the general or special instruction of the Director of Public
Prosecutions and shall for the purpose of any such prosecution have the
powers of a public prosecutor appointed under any law for the time being in
force.
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Prosecution
of offences
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91D. (1) An inspector
shall, by way of an ex-perte application, apply to a court for
an order in respect of any premises on which .an offence is suspected of
being committed under this Act-
(a)
to prohibit the carrying on of a process or operation causing
pollution or is likely to cause significant damage to human, plant, animal
health or the environment;
(b)
to prohibit the use of machinery, plant, equipment or appliance
whose use is causing or is likely to cause significant damage to human, plant
or animal health or the environment;
after
having given the owner or occupier seven days not ice of intention to make
the application to a court. .
(2) The notice of intention to
make the application to a court under subsection (1) shall be in the
prescribed form.
(3) Where in the case of premises
on which an offence is suspected of being committed under this Act, the court
is satisfied on an application made by an Inspector under subsection (1)-
(a)
that seven days notice of the intention to make an application
under this section stating the time at which it had been made, has been served
on the occupier of the premises;
(b)
that the carrying on or use of the operation or process on any
part of the premises is causing pollution likely to cause significant damage
to human, plant or animal health or the environment; or
(c)
that any machinery, plant, equipment or
appliance is being used so as to cause significant damage to human. plant or animal health or the environment; the court may
make an interim order prohibiting either absolutely or subject to conditions
the use of the plant. machinery, equipment or
appliance or the carrying on or use of the operation or process until the
earliest opportunity for hearing and deter- mining the application.
(4) Where after the hearing of
the application by an inspector under subsection (1) the court is satisfied
on evidence
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Power
to make orders on process in premises, plant and machinery
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