Title: Framework Concession Agreement and Selection Process for the Safari Industry in Zambia
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Permanent Link: http://ufdc.ufl.edu/UF00086000/00001
 Material Information
Title: Framework Concession Agreement and Selection Process for the Safari Industry in Zambia
Physical Description: Archival
Language: English
Creator: Ankersen, Thomas T.
Publisher: Board of Trustees, University of Florida
Publication Date: 1995
 Subjects
Subject: Africa   ( lcsh )
Spatial Coverage: Africa -- Zambia
 Record Information
Bibliographic ID: UF00086000
Volume ID: VID00001
Source Institution: University of Florida
Holding Location: African Studies Collections in the Department of Special and Area Studies Collections, George A. Smathers Libraries
Rights Management: All rights reserved by the source institution and holding location.

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* UNIVERSITY OF

W FLORIDA

College of Law 230 Bruton-Geer
c:;'er ~tr Co,. rnmel ntli ki'.ponsbilb tyv GCaires i!le, FL 32611-2010
TIlehone. (904) 392-2237
Tielax: (904) 392-1457
May 30, 1995

Mr. Ackim Mwenya, Director
National Parks and Wildlife Service
Ministry of Tourism
Private Bag 1
Chilanga, Zambia

Re: Framework Concession Agreement and Selection Process for
the Safari Industry in Zambia

Dear Ackim:

Enclosed please find copies of a "Framework Concession
Agreement" for commercial safari hunting rights in Hunting
Blocks within the Game Management Areas ("GMA") of Zambia, and
a proposed "Selection Process" for the award of Commercial
Safari Hunting Concessions. These documents represent the
deliverables prepared under our contract with NYZS/The
Wildlife Conservation Society (through its subcontract with
the ADMADE support project of the World Wildlife Fund-US,
funded by USAID). As you know, these documents are the product
of a series of negotiations with you and your staff, and
numerous discussions with others with an interest in the role
of the safari industry in the sustainable use of wildlife. In
addition, we have reviewed a variety of documentary sources,
including previous reports on the legal and institutional
framework for wildlife law in Zambia, and community based
wildlife management schemes in neighboring countries. We are
especially indebted to your efforts to develop a broad
consensus concerning the key issues facing the Safari Industry
and wildlife estate in Zambia, evidenced in the proceedings of
the 1994 "Wildlife Industries in Game Management Areas
Workshop."

In developing these documents we have taken into account the
interest of the National Department in devolving the
responsibilities for wildlife management to local Communities,
the need to provide a stable investment environment for Safari
concessionaires, the importance of restoring depleted Hunting
Blocks to their full wildlife utilization potential, and the
need to develop a fair, impartial and transparent selection
process. We have also considered the constraints imposed by
the current legal framework for wildlife management in Zambia.

The Framework Concession Agreement and Selection Process
necessarily distills a wide variety of opinion, and represents
a balancing of numerous competing interests. Under the
constraints imposed by the need to develop working documents







acceptable to the National Parks and Wildlife Service
("NPWS"), and that account for local conditions and existing
law, we believe the concepts embodied in the Framework
Agreement can advance the prospects for increasingly
community-based conservation in the country, while ensuring
the stability of the Safari Industry in Zambia.

The following paragraphs discuss some of the more
significant issues addressed in the Framework Concession
Agreement and Selection Process.

I. The Framework Concession Agreement

Duration There was general consensus that to encourage long
term investment the duration of the concessions should be
considerably increased. The 1994 Wildlife Industries Workshop
recommended a minimum of five years, which has been adopted in
the Framework Agreement. Consideration was given to providing
for renewal. However, as described below, the Framework
Agreement authorizes Operators to enter into Community Co-
Management Agreements with the Community(s) within the Hunting
Block. With these Co-Management Agreements, the Operator may
ultimately negotiate concessions directly with the
Communities. It was determined that providing a renewal may
inhibit the devolution of management authority to Communities.

The Community Defining "the Community" within the context
of the Framework Agreement is problematic. The difficulty
stems from the fact that there is no administrative unit with
boundaries that are geographically coterminous with the
Hunting Block, the basic jurisdictional unit encompassed by
the Agreement (and the basic unit for the generation of
revenues to Communities). In addition, existing traditional
and non-traditional governance mechanisms appear to lack
adequate legal authority to serve in this capacity. Moreover,
there is ongoing political debate over the appropriate
governance institutions to represent local peoples in the
GMAs.

The Framework Agreement simply defines "the Community" as the
sum total of village and individuals living within the Hunting
Block, leaving the appropriate administrative unit to the
development of the Co-Management Agreements envisioned by the
Framework Agreement. This will allow flexibility for the
Department, the Community and the Operator to adopt the most
appropriate mechanisms for the devolution of management
authority, which may include both traditional and non-
traditional institutions, e.g. Chiefdoms, ADMADE
Subauthorities, or the Integrated Resource Development
Committees currently authorized by the National Parks and
Wildlife Act, and which may vary from one GMA to another. The
Department may wish to specify criteria that must be satisfied
in the development of appropriate institutions through the Co-
Management approval process, or through legislative reform.








Community Co-Management A major consideration of NPWS has
been to identify an appropriate mechanism to devolve
responsibility for the management of wildlife to the
Communities within the GMAs, within the constraints of
existing law. We considered potential mechanisms to
accomplish this objective, including the development of a
three party concession agreement involving the Operator, NPWS
and the Community. However, the difficulties in defining the
Community described above, as well as practical and legal
considerations and time constraints militated against this
option. Instead, the Framework Agreement includes a provision
that gives the Operator and the Community the opportunity to
enter into "Community Co-Management Agreements" under the
umbrella of the Framework Agreement. Community Co-Management
agreements would be subject to NPWS approval and supervision
for the duration of the Concession Agreement, but could
otherwise supplant the Framework Agreement in all other
respects, eventually replacing them. The Operator and the
Community would be charged with defining and legitimizing an
appropriate Community entity, as discussed above, subject to
NPWS approval.

Community Co-Management Agreements provide a flexible approach
to the devolution of wildlife management authority, both in
terms of timing and the complexity of such agreements. Co-
Management could range from simple mutual management
obligations under the continuing auspices of NPWS, to the
complete delegation of all management functions, financial
accounting and concessionaire selection authority to the local
level, to the extent permitted by law. Much will depend on
the relative sophistication of Communities and Operators.

The Framework Agreement requires NPWS to establish appropriate
criteria for evaluating Community Co-Management Agreements by
Statutory Instrument. The rapidity with which NPWS develops
these criteria is crucial to demonstrating its commitment to
this form of Community-Based Management. Because of the
novelty of this concept to the Safari Industry in Zambia, it
is important for NPWS to take a leadership role, and
facilitate the process by which devolution takes place.

Depleted Areas As you know, in the course of our discussions
NPWS decided that depleted areas should be segregated from
this tendering process based upon a review and
reclassification of depleted areas to include only those areas
that were not viewed as commercially viable at this time. It
was decided that a more appropriate strategy for these
commercially non-viable depleted areas should be developed
outside this tendering process, with a view toward creating a
more appropriate incentive structure, and attracting
international investment.







Financial Obligations The framework agreement maintains the
existing concession fee structure involving bids based on
Classical Safaris, Mini Safaris and Specialized Safaris, with
some definitional modifications and the inclusion of a
"Hunting Rights Fee" for hunts in Hunting Blocks other than
the particular Hunting Block that is the subject of each
Agreement. (These will need to be reconciled with the
existing regulatory definitions by statutory instrument).
During the course of our discussions, interest was expressed
by some Operators in moving toward a more flexible process
based upon gross or lump sum bids, that would give them more
flexibility in marketing, and reduce the cumbersome licensing
procedures currently in force. Although it was not adopted in
this instance, we believe that the concept has merit, and
would bear further investigation in the future, provided a
formula can be developed to protect the interests of NPWS and
the Communities.

We also discussed the need to increase the initial financial
commitment of Operators to discourage marginally financed
Operators (the so called "briefcase companies" that sprung up
in the last concession round), to provide cash flow to the
Revolving Fund, and to afford greater protection to NPWS and
the Communities in the event of default. The Framework
Agreement therefore, calls for both a Performance Bond and a
cash Deposit. We believe the performance bond, if possible,
should be sufficient to cover lost revenue to NPWS and the
Communities for a full Safari season, in the event of default.
This is particularly true since the Communities will be almost
entirely dependent on the industry for its revenue stream. (We
would note, however, that there was, however, a countervailing
concern that placing too much emphasis on capitalization may
discourage some otherwise viable operators who operate on
tighter margins and rely to a greater extent on cash flow).

Exclusive Use/Licensing A major consideration throughout our
discussions was the issue of competing uses, both hunting and
non-hunting, within the Hunting Blocks. Concern was expressed
over potential conflicts created by resident and non-resident
hunting, and the issuance of Special Licenses within the
Hunting Blocks. There is also increasing concern within the
Operator community over potential conflicts with non-hunting
tourism in the GMAs. These competing uses have the potential
to greatly affect quality and quantity of hunts offered by
Operators, and can create uncertainty over the nature and
extent of the hunting rights conferred by the Concession.

The Framework Agreement calls for an "Exclusive Hunting
Period" that precludes all other licensed hunting for its
duration. During the periods of overlap between commercial
safari hunting and other licensed hunting (i.e., the non-
exclusive hunting period), the Framework Agreement imposes a
notice requirement, requiring NPWS to notify Operators that
non-safari hunting licenses have been issued within the
Hunting Block. The Agreement also imposes a duty on the
Director to notify Operators prior to the approval of non-







hunting tourist facilities within the Hunting Block.
Resolving these issues may involve political considerations,
require additional authorizations, and involve the
participation of additional government agencies. Accordingly,
they should be bolstered through the Minister's regulatory
authority to issue Statutory Instruments, and possibly law
reform.

II. Selection Process

The nature and form of an appropriate selection process is
largely determined by the requirements of the Zambia National
Tender Board, which governs the procurement of government
goods and services. We have utilized, and customized, a draft
tender document format previously prepared by NPWS for this
exercise to present a selection process for these concessions.
This Selection Process document does not, however, reflect a
completed set of tender documents.

Transparency A key consideration included in our terms of
reference was the importance of ensuring the transparency of
the Selection Process for concessionaires. The Selection
Process offers several procedural safeguards to help produce
this result. However, as with any highly competitive process
with vested interests and substantial financial rewards,
procedures alone cannot guarantee fair and impartial
proceedings. Ultimately, that guarantee can only be provided
by the credibility and integrity of the participants. This is
especially true in instances, such as this one, where
subjectively evaluated qualitative criteria play a significant
role in the Selection Process.

We suggest that all documents submitted and/or prepared during
the tendering process be made available for public inspection
upon the conclusion of all related proceedings. This would
include documents, such as evaluation forms, generated during
the deliberations of the technical evaluation committee,
discussed below. This may require the approval of the Zambia
National Tender Board, and consideration for the sensitivity
of confidential business information provided by tenderers.

The Selection Process provides for, and identifies the
composition of, a Technical Selection Committee to provide
recommendations to the National Tender Board in its final
award decision. The composition of the Committee includes
non-voting participation by representatives from the National
Parks Board, the Professional Hunters Association of Zambia,
The Anti-Corruption Commission, and Safari Club International.
The participation of these individuals is intended to build
confidence in the Selection Process, while preserving NPWS's
primary role in the technical decisionmaking process. NPWS
may also wish to provide these individuals with voting
participation.







The Selection Process also includes a provision requiring the
disclosure of any potential conflicts of interest that
prospective concessionaires may have. NPWS or Zambia Tender
Board may wish to consider the disqualification of those
concessionaires who disclose conflicts. NPWS may also wish to
include a provision in the Concession Agreement prohibiting
conflicts of interest that may arise after the concessionaire
is selected through the subsequent transfer of ownership
interest, employment relationships or other means. These
safeguards would avoid the appearance of impropriety that can
damage the integrity and credibility of NPWS, and the Safari
Industry in Zambia.

Evaluation Criteria The Selection Process calls for a "two-
envelope" tender system in which the actual tender price is
not disclosed until the technical evaluation of concession
proposals is completed by the Technical Evaluation Committee.
At that point, the tender price becomes another factor in the
numerically weighted set of evaluation criteria. Five primary
categories were established for evaluating technical
proposals. These include, in order of weighted importance: A
Business Plan (35 points), Prior Experience (20 points),
Tender Price (20 points), Community Co-Management (15 points),
and Wildlife Management (10) points. The emphasis was given
to business and marketing acumen and financial capacity
because of the interest in encouraging a stable investment
environment in which community co-management and wildlife
management would have a better opportunity to flourish.

One difficult unresolved issue is how to allocate the allotted
points for the Tender Price. The simplest method would be to
apportion those twenty points evenly according to the
difference between the highest and lowest bids for a Hunting
Block. Under that method, however, a bid for $3,500 might
receive 20 points, while the low bid of $3,250 received none,
if the differences were that close. Another suggested method
would be to create a schedule ranging from the reserve price
to the highest bid received last year. Bids falling within
certain ranges would receive designated points. Aside from the
difficulty of developing the schedule, one might expect bids
to be made on the low side of the increments. It might be best
to leave the allocation to the judgement of the selection
committee, although that risks manipulation of the results.

III. Legal Issues

Implementing the Framework Agreement will require the
amendment of existing Statutory Instruments and the
promulgation of new ones, some of which must be completed
prior to tendering these concessions. We have noted those
provisions that appear to require the amendment or
promulgation of regulations in the text of the Framework
Agreement. In particular, revisions are necessary to the
Statutory Instrument regulating licensing of hunting in the
GMAs to reflect the definitional changes made in the Framework
Agreement, and rules relating to the exclusive hunting period.







Also, a new Statutory Instrument establishing the criteria and
procedures for delegation of management authority through the
Co-Management Agreement process must be drafted.

In addition, as you are aware, the legal framework for
wildlife management within the Game Management Areas provided
by the Wildlife Act remains vague, and its relationship to
other statutes, such as those governing the disposition of
communal lands is unclear. Ultimately, the process for
devolution must be embedded in law, and the nature and extent
of NPWS's surviving regulatory authority must be decided.
Although resolution of these issues is beyond the scope of our
terms of references, we will seek to address them in our
review of the National Parks and Wildlife Act under separate
contract in July.

IV. Conclusion

We believe the approach developed in these documents offers a
novel and workable approach to the development of community-
based wildlife management in Zambia. Bringing devolution to
fruition will require a concerted effort on the part of NPWS
and the Operators, in close collaboration with the
Communities. We believe that NPWS should take the lead by
developing and publishing criteria for Community Co-Management
agreements as soon as possible, informing the Communities of
this opportunity to assume greater responsibility for managing
the wildlife whose habitat they share, and encouraging willing
Operators to take the lead in moving the process forward.

We look forward to following the progress of your efforts. If
you have any questions, please let us know.


Sincerely, /


Thomas .". A- ersen Richard Hamann

cc: John Robinson WCS-New York
Peter Tilley WWF-Lusaka




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