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The State has appealed against the judgement of the High Court to quash the decision of the Ministry of Tourism to cancel the tender for the granting of the Safari hunting/photographic Tourism concessions in 19 hunting blocks in various Game Management Areas.
Government chief legal advisor, Attorney General, Mulilo Kabesha, raised seven grounds of appeal expressing the State’s dissatisfaction with the judgement rendered by Lusaka High Court Judge, Sharon Newa.
In a memorandum of appeal filed in the Court of Appeal on Wednesday, Kabesha argued that that Justice Newa erred in law and fact by quashing the decision of the permanent secretary saying that he had no jurisdiction to cancel the tender.
The Attorney General said that it was a grave error by the lower court to state that the permanent secretary had no authority when he is the controlling officer under section 26 of the Public Procurement Act,2020, charged with the duty and responsibility of ensuring that the procurement process was done in accordance with the Public Procurement Act.
He contended that the High court erred in law and fact in holding that it was the permanent secretary of tourism that made the decision and stated that he had no jurisdiction to do so to cancel the tender process for the grant of the hunting concessions when Muhanga merely conveyed the Ministerial Procurement Committee.
The state claims that it was a serious error by the Judge to ignore the guidance of the Court of appeal to the effect that Zambia Wildlife Act and the Public Procurement Authority were not mutually exclusive and that the Ministerial Procurement Committee was the correct committee to cancel the tender.
Newa, ruled that the Permanent Secretary decision dated May 4,2022, was illegal because only the procuring entity, which is Wildlife Management Licencing Committee have the jurisdiction to cancel hunting concession agreements.
“The applicants having succeeded on the grounds of illegality, procedural impropriety, and that the decision was null and void, irrationality/unreasonableness, and legitimate expectation, I accordingly issue an order of certiorari, quashing the decision of the permanent secretary of the Ministry of Tourism and Arts dated 4th May, 2022, which cancelled the tender for the hunting of safari hunting/photographic tourism concessions in the 19 hunting blocks in the various game management areas MTA/SP/001/20,” ruled the judge.
Justice Newa issued an order of mandamus compelling the Attorney General to facilitate the signing of the hunting concessions with the applicants.
She further issued an order preventing the State or its agents from re-advertising the said tender.
The Judge declared that the litigants did adhere to the law and regulations governing the procurement of the tender.
Background to this matter, Zambia Community Resources Board Association and four safari companies, sought judicial review seeking an order quashing the decision of the PS.
The four safari companies are; Mopane Safaris Limited, Kwalata Safaris Limited, MVU Safaris Limited and Ntengu Safaris Limited. The five applicants contended that the said decision by the permanent secretary to cancel the legitimately awarded safari hunting/photographic tourism concessions was illegal, null and void ab inition for breach of sections 7,48,54 and 57 of the Zambia Wildlife Act no.14 of 2015 which gives the power to cancel hunting concession agreements to the Wildlife Management Licensing committee, and not the Permanent Secretary.
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