Zambian government ‘divorces’ Vedanta

Miners unions demonstrate in Chingola in support of the government’s decision

28th June 2019. On the 20th of May, following weeks of protests and riots which had briefly brought tanks into Chingola, Zambia’s President – Edgar Lungu – announced his government’s intention to liquidate Konkola Copper Mines in order to ‘divorce’ Vedanta Resources as the majority shareholder and seek a new investor.

Miners and residents of Chingola in the Zambian Copperbelt had taken to the streets in anger about unpaid wages and conditions at KCM, despite being denied a police permit applied for by Nchanga Member of Parliament Chali Chilombo to stage a peaceful protest. This was the culmination of negative public opinion which had been building up against KCM for many years, and especially since mass layoffs of employees in 2013 and 2015 and outsourcing of labour.

In his announcement president Lungu accused KCM of breaching its operating licence and said the government’s decision to punish Vedanta’s subsidiary for breaches of environmental and financial regulations was a signal to other firms to follow the country’s laws.

Milingo Lungu (front right) takes over KCM

On 21st May provisional liquidator Milingo Lungu of law firm Lungu, Simwanza & Company was appointed by ZCCM-IH (Zambia Consolidated Copper Mines – Investment Holdings, the government’s mining investment arm which owns 20.6% of KCM), at Lusaka High Court with power to take over the running of the mine and deal with all company matters.

Later that day various mine workers’ unions including the Mineworkers Union of Zambia, alongside other miners, ex-miners and residents of Chingola and Chililabombwe held a historic demonstration in the streets of Chingola in solidarity with the government’s decision.

In a press statement on 21st May Minister of Mines Richard Musukwa cited the layoff of employees, the indebtedness of KCM, vast unpaid bills to contractors and suppliers, and failure to invest in and develop its mining assets as reasons for KCM’s liquidation, saying the extreme action was taken ‘to make KCM viable’.

Minister of Mines – Richard Musukwa

In a more recent statement to the Zambian parliament Mr Musukwa traced the source of the KCM dispute back to a 2013 Government Technical Audit which revealed high levels of debt, the failure to inject any capital expenditure and evidence of transfer mis-pricing and tax evasion. He said that attempts to work with KCM to improve the viability of the mine since then had failed and said Vedanta ‘has no capacity to run the mine’. The also named current debt levels at KCM as $2.5 billion.

A statement by the Zambian Information Minister, Honourable Dora Siliya, noted that a default notice was sent to KCM in relation to breach of agreement terms was sent to KCM in April last year, but the situation had not improved putting the company at risk and preventing much needed payments to ZCCM-IH for ‘other development projects’.

The immediate reaction of the global financial media and mining companies has been to whip up claims of resource nationalism, corruption and desperation against the Zambian government, and decry their decision as ‘anti-investor’ and risking an exodus of Foreign Direct Investment from the country. However, Zambian intellectuals and government ministers have clearly articulated their view – that the country has been looted and polluted by neo-colonial mining interests for too long, and the Zambian people have suffered greatly as a result. Vedanta’s corporate abuses at KCM have been too extreme to ignore and despite years of negotiations and concessions from the government, show no sign of improving.

In a press release on 10th June Thierry Charles, on behalf of Euronext Minority Shareholders of ZCCM-IH (a France based pan-European exchange company) put his support behind the government’s sentiment:

“For many years, we have wanted strong measures to be taken against mining companies that do not play the fair game with the people of Zambia and ZCCM-IH. For too long, these companies have abused the caring of different Zambian governments, anxious not to hurt international investors and to preserve employment in the Copperbelt. After the appointment of our new chairman Eric Silwamba, we urged him to bang his fist on the table and to get the profiteers on right track in a letter at 12 September, 2018.”

He pointed out the blatant dishonesty in service of tax evasion by Vedanta, who have repeatedly claimed to be making a loss at KCM, a claim which was initially challenged in Foil Vedanta’s 2013 report Copper Colonialism: Vedanta KCM and the copper loot of Zambia, following which government audits, a London court case, and a candid video of Vedanta owner Anil Agarwal himself bragging to Indian businessmen, revealed that Vedanta were in fact making vast sums, hidden by transfer mis-pricing and other tax evasion techniques.

“As it is to Glencore and its Mopani subsidiary, how can we really believe that Vedanta have kept the mine all this time if it didn’t generate profits? ZCCM-IH got only miserly crumbs during Vedanta’s operation of the KCM mines. The $3 billion investment announced is Vedanta’s sole commitment, the poor state of KCM’s facilities appear to contradict this allegation. For several days, Vedanta has been trying to justify the inevitable dramatic situation of KCM but insist on keeping and running the mine. Odd situation… Have we ever seen a leech want to continue sucking at all costs a dead man…? In line with their logic, after such a financial and environmental disaster, they should rather leave Zambia by the back door and by lowering their head.”

Anil Agarwal brags about ripping off Zambia at JITO conference

He went on to refer to the March 2014 video of Anil Agarwal speaking to the Jain International Trade Organisation in Bangalore, India in which Agarwal claimed to be making $500 million a year at KCM as well as describing how he acquired ‘the largest copper mine in Africa’ by offering $25 million rather than the $400 million asking price. Charles expressed his outrage that “Not only does Vedanta despoil Zambia and pollute the land of surrounding villagers, not only does Anil Agarwal not keep his promises, but he also has the impudence to mock the Zambia people and their leaders! While he is a spoilsman, humiliating them in this way is disgusting…”

Vedanta’s continuous claim to have invested $3 billion in KCM has been entirely disproven by government audits in 2014 and ongoing investigations. The importance of the claim goes back to the original deal between Vedanta and the then government of Zambia, headed by President Mwanawasa in 2004. Agarwal offered $25 million for a 51% stake in the mines, plus a further $42 million in deferred payments to other shareholders, some of which were allegedly never received (see Copper Colonialism for more details), plus importantly a commitment to invest around $357 million in to developing certain aspects of the mines including the Konkola Deep Mining Project at Chililambombwe and the development of the Upper Ore Body at Nchanga mine in Chingola. Neither of these developments has ever come to fruition and costly mistakes have been made in Vedanta’s attempts over the years.

As Minister of Mines Richard Musukwa states in a 12th June interview in Forbes magazine:

“To be clear, the government has at several instances attempted to engage with Vedanta including at the level of chairman, offering numerous opportunities for the company to redeem themselves from their violation of the Mines and Minerals Act. We must always remember that KCM was sold with conditions, and among those conditions was the requirement to operationalize the Konkola Deep Mining Project (KDMP). To date the project is behind by seven years, and clearly Vedanta has failed to mobilize the resources to recapitalize the operations. Another problem is that the Nchanga underground ore body remains unexploited, as well as the fact that Vedanta has failed to pay suppliers and contractors significant sums totalling millions of dollars.

At the time of the government’s intervention, KCM was found to be completely broke. The mineral audit commissioned by the government in 2013 revealed that Vedanta failed to raise the required $357 million external capital injection which had been promised in the development agreement. Instead, the company was applying internally generated profits toward other operational costs. So we are dealing with a company that has broken the law in Zambia, and we should hope to have support from the international community in our effort to enforce the law.

Reggae artist and activist Maiko Zulu protests in Lusaka during Vedanta’s 2018 AGM

For these reasons and others, the intervention to liquidate Vedanta’s shareholding in KCM has been broadly supported by Zambian people across the political spectrum.”

Another article points out what many miners in service at KCM at the time of Vedanta’s acquisition will freely tell visitors – that Vedanta inherited a mine with over a month’s supply of finished copper that was on it’s way to customers but not yet paid for, two to three years of caved reserves at Nchanga Underground mine, over 2.5 metric tonnes of copper and cobalt ores in stockpiles at Nchanga Open Pits and large quantities of ores already exposed at Nchanga and Konkola Underground mine and Open Pits, as well as US$60 million that was in the Bank at the time of acquisition.

The article details Vedanta’s asset stripping of the mines, as they failed to invest into developing underground mines and instead used up easy to reach ores, finally resorting to processing dumped refractory ores and toll smelting, both of which were not profitable. Essentially, the article claims, this has left KCM with a mountain of liabilities and needing enormous investment, as the Mines Minister himself admits when he allays fears of resource nationalism by stating that ZCCM-IH simply wouldn’t be able to afford to get KCM functioning again. The Times of Zambia concludes that KCM is doomed unless Vedanta can finally be forced to invest the claimed $3 billion before they exit.

Gilbert Temba, President of the Bank of Zambia

Investigative journalist blog Zambian Watchdog recently posted this 2016 letter to Minister of Mines from Gilbert Temba, a Patriotic Front founder member and Vice Board Chairman of the Bank of Zambia who warns the government of the impending crisis. In it he points out that Anil Agarwal’s interest in Zambian Copper predates his 2003 purchase of KCM as he had ‘first attempted to get Zambian mining assets in mid 1990s at the height of Zambia’s mining privatisation programme when they bid as Sterlite Industries of India for one of the ‘packages’ which included Nchanga and Konkola mines. The bid was rightly laughed off as a ‘joker in the pack’ because it came from an unknown in the world industry of mining.’

He goes on to liken Vedanta to BINANI, an Indian company who asset stripped the Luanshya mine in the early 2000s and fled Zambia, advising the government to appoint external auditors of KCM and subsequently negotiate their exit from Zambia, in favour of ‘serious reputable mining investors’.

‘KCM’s current behaviour of failing to meet even their smallest of financial obligations without any sensible reason is indicative of the immediate future plans – they can only be busy asset stripping with the idea of doing ‘a BINANI’ very soon.’

Emmanuel Sikanyika, former Mineworkers Union of Zambia (MUZ) national deputy treasurer and ‘an international relations specialist’ further told the Zambian Daily Nation newspaper that KCM was not only a bad investor but an exploitative employer paying its workers peanuts. He emphasised that the company had ‘one of the worst’ Corporate Social Responsibility (CSR) programmes – something Vedanta and KCM reports claim they are investing millions into. Mr Sikanyika made the link with the colonial plunder of Zambia’s minerals, stating;

“This is also tantamount to neocolonialism where stronger nations continue to systematically deplete our resources while creating never ending poverty and terming us incapable of managing our own countries.”

Foil Vedanta’s Copper Colonialism report detailed the ongoing colonial links which facilitated UK company Vedanta’s profit from KCM, including the involvement of the Commonwealth Development Corporation, formerly the Colonial Development Corporation, in setting up meetings and deals, as well as funding for the Nchanga smelter by the UK Department for International Development. Not to mention the complicity of the London Stock Exchange and Financial Conduct Authority who listed Vedanta Resources, never investigating gross tax evasion and illegalities at its mines. (More on the role of the City of London can be found in Foil Vedanta’s report Vedanta’s Billions: Regulatory failure, environment and human rights)

Vedanta has responded to the liquidation by claiming it is a breach of their shareholder agreement and demanding international arbitration in Johannesburg, which the Zambian government have refused.

Most recently the company applied to the Lusaka Hugh Court to remove the majority of the powers of the liquidator to sell KCM assets or deal with creditors until such time as the court decides whether KCM should be wound up or not. The court granted the stay to Vedanta on 25th June, but later that week discharged Vedanta’s stay following an application by ZCCM-IH.

Celebratory protests in Chingola

On 19th June six Indian managers of KCM, including the Chief Commercial and Finance officers, the General Manager and the Chief Information Officer, were sent on forced leave by the appointed liquidator citing a risk that they could sabotage the company if left in post. On 20th June Lusaka High Court judge Annes Banda-Bobo ruled against a request by parent company Vedanta Resources to join in proceedings to wind KCM, although it was granted leave to appeal against the ruling.

Vedanta claim they have been unfairly treated by the Zambian government and are unable to make a profit or invest due to the Zambian tax regime as well as the with-holding of VAT repayments by the Zambian government. $200 million VAT repayments are still being with-held from KCM by the Zambian government as a bargaining tool to force KCM to pay various royalties, penalties and other taxes it has failed to pay to the government.

A KCM press release said: “KCM is not for sale and Vedanta will challenge any attempt to sell the business without its consent.”

Global media commentators from Reuters and Bloomberg to the Financial Times have decried Zambia’s mineral tax policy as dangerous ‘resource nationalism’. In his Forbes interview Minister of Mines Richard Musukwa responds to such claims that investors will flee Zambia:

“This claim is flatly false and an unfortunate example of the sort of misleading information which appears aimed at pressuring the government. We are also now very accustomed to being threatened as a response to taxes – it seems like the first page of the mining company playbook is to issue press releases promising layoffs, production cuts, and ultimately the bluff to walk away.

Here are the facts of what’s happening. Last year, the government passed new mining tax legislation that raised the sliding scale royalties rate for copper products by 1.5%, with a windfall tax of 10% when copper prices reach above US$7,500 per metric tonne. These adjusted rates, which went into effect earlier this year, are simply a continuation of what’s been a methodical, years-long effort to balance the concurrent needs for increased public revenue and foreign investment. The tax regime is designed to create attractive conditions for the expansion of production by the mining houses while at the same time achieving a fair share of the national mineral wealth for the Zambian people – revenue that is much needed to improve our schools, provide quality healthcare, build roads and fund basic infrastructure.

You may recall that only a few years ago in 2014, Zambia experimented with a 20% royalty rate, but it failed to increase revenue. Now, royalties are half that amount, and still lower than the royalties charged by many of the world’s other leading copper producers such as Chile, while other countries such as Democratic Republic of Congo have made decisions to triple their royalty rates (for cobalt). The criticism of Zambia’s tax regime as somehow “unfair” to operators is not an accurate nor honest appraisal given industry trends.”

Zambian President Edgar Lungu

President Edgar Lungu claims to have already received expressions of interest for KCM from companies based in Turkey, Russia, India, Canada and China and says he expects a new investor to be found within the next month. However, Vedanta is not likely to leave quietly, and court cases continue in Lusaka.

Other commentators are questioning whether the government’s attitude will extend to other contentious Zambian miners such as the Glencore owned Mopani Mines and First Quantum Minerals.

In their press release Thierry Charles, of Euronext Minority Shareholders of ZCCM-IH, questioned First Quantum Minerals’ claims that it holds $3.5 billion of retained earnings in its accounts, claiming that keeping such a huge amount of money was abnormal.

“First Quantum MInerals is another clear case in point. How can we really believe FQM is letting $3.5 billion sleep in the Kansanshi Mine’s coffers? To keep that huge amount of retained earnings is abnormal. Would they be distributed, the ZCCM-IH’s share would be as much as 700 million while Zambia is in dire need of money and development. Would the purpose of FQM be to stifle the people of Zambia? It may be Mr Pascall and his staff’s strange way of rewarding the Zambians for allowing FQM to build a world mining empire through the Kansanshi Mine.

Recently, rumors have circulated that FQM has proposed to buy back our 20 per cent Kansanshi shares for $700 million. In other words, FQM would offer to buy it back with our own money!”

He warned that ZCCM-IH’s minority shareholders would constantly monitor the situation at KCM.

“Whatever the future shareholding structure that will subsequently be adopted for KCM’s assets, the minority shareholders of ZCCM-IH will continue to look with their thoughtful and watchful eyes at the situation, the people of Zambia having been robbed for far too long.”

Polluted water comes from a borehole downstream of KCM’s operations near Chingola

While the asset stripping of Zambia’s mines is a tragedy which has left the Zambian people with environmental and financial liabilities worth billions of dollars, what is hopeful is the seeming shift in regulators, tax authorities and the government in tightening regulation and monitoring of mining companies. Mines Minister Richard Musukwa’s comment on the ongoing case of 1,826 villagers against Vedanta and KCM for gross pollution of their waterways since 2004, which has been given UK jurisdiction in a precedent ruling, claims that environmental and tax regulations will be significantly tightened for future investors, and shows a determination to end parasitic behaviour by mining companies:

“The allegations are that under Vedanta’s management, the Nchanga Copper Mine allegedly significantly polluted the Kafue River, and all but destroyed the livelihoods of nearly two thousand Zambian villagers who depend on the waterway to irrigate their crops, cook their food and wash their belongings. This case is now going through the London courts and has cast a light on the alleged irresponsible operational record of Vedanta.

Protesters from Foil Vedanta at the Supreme Court in January

If the claims in that lawsuit are upheld in court, then it is clear that more needs to be done to protect Zambia’s environment from pollution caused by mining. To ensure that this such gross negligence does not happen again, the Ministry of Mines, in cooperation with the Ministry of Finance, is designing a series of new audits for all mines operating in Zambia. These will be randomly administered, holistic and comprehensive inspections of all mine operations. These will not only verify compliance with tax and royalty payments through evaluation of financial documents, but these will also determine whether mines are satisfying environmental regulations. The Ministry is prepared to conduct surveys and interviews, anonymously and at random, with “at-risk” stakeholders, similar to those who are currently seeking damages from Vedanta in the United Kingdom. Similar measures will be undertaken to improve labor conditions at mines, and decrease the number of workplace accidents and fatalities.”

If Musukwa’s claims are enacted, and especially if other African countries follow suit, there could be a silver lining to the disasterous story of Vedanta’s looting and polluting of Zambia. Meanwhile court cases in London and Zambia continue.

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