High Court rebuffs Malawi Law Society on Salima- Lilongwe water project: Injunction refused

The High Court in Zomba has rejected granting of an injunction to halt the Lake Malawi water supply project being done by Khato Civils on behalf of the Lilongwe Water Board (LWB).

The application was done by Malawi Law Society (MLS) after showing signs of discontent with the way the $500 million contract was awarded and also following news that the project is being implemented without a feasibility study as well as Environment and Social Impact Assessment (ESIA).

MLS rushed to the court to seek an  intervention for the court to grant an injunction halting implementation of the project pending a judicial review.

This comes at a time the contractor, Khato Civils,  has already invested over $50 million in mobilizing state of art equipment and other resources in readiness for the project.

However, High Court Judge, Justice Renold Kapindu, on Friday, ruled that the application by MLS to halt the project until judicial review is done, failed to portray urgency in the matter that would require a temporary relief.

“I hold that by reason of lack of demonstration of urgency, the prayer for an interlocutory injunction herein, made ex-parte, cannot be sustained,” says judge in the ruling.

But Justice Kapindu has granted MLS a leave to apply for a judicial review to determine legality of the controversial project that, according to LWB, is a permanent solution to water supply issues in the Capital City.

Khato Civils, a South Africa based civil engineering company owned by a billionaire Malawian business magnet Simbi  Phiri won a restricted tender to undertake what would be Malawi’s largest water project since independence.

However, the lack of ESIA as required by the law has escalated the suspicions that have led to protests by some sections of the civil society although recently, a Public Accounts Committee of Parliament backed the project following its own inquiries.

The MLS questions, in its application at the court, “the lawfulness and procedural propriety of certain decisions on, and the conduct of various authorities that are concerned with, the implementation of the project.”

The court has, however, granted MLS access to documents including the project brief, project contract between Khato Civils and LWB and any other relevant documents from all parties concerned like LWB and government.

Through the ruling, it has been learnt that the Director of Environment Affairs agrees that the Salima-Lilongwe water pipeline project requires an Environment Impact Assessment.

“We have been advised by LWB that they are currently in the process of engaging EIA experts to undertake the EIA. Once the EIA is submitted to the department it will be reviewed by the Technical Committee on the Environment (TCE) and relevant stakeholders including interested and affected parties,” the Director is quoted in the ruling.

However, the court has set a date of May 9, 2017 for an intra parte hearing of the application for interlocutory injunction having denied the granting of stay order of the project implementation ex-parte.

“If the applicant had made a prayer akin to that of prohibition or certiorari, the Court would have considered making a direction that the grant of leave to apply for judicial review herein should operate as a stay of the proceedings to which the application relates until the determination of the application or until the Court otherwise orders,” says the ruling.

Khato Civils Media and Public Relations Manager Taonga Botolo refused to comment on the matter claiming that he was yet to see the court ruling.

However, when Nyasa Times reporter sent him the court ruling, Botolo remained elusive saying Khato is not party to the court case. He therefore referred the matter to LWB officials who were not immediately available for comment.

The mega water project involves construction of the pipeline, water treatment plant, pump stations, four water reservoirs, an overhaul of main pipes in the city and the construction of alternative wind and solar power plants that would generate at least 15 megawatts to power the water pumping.

Apart from Lilongwe city, the project once completed is expected to benefit communities in Salima, Dowa, Mvela, and Ntchisi through access to portable water and also irrigation.

Khato Civils is fast emerging  as one of Africa’s most efficient and largest water works contractor having carried out large scale projects in South Africa, Botswana, Namibia, among others, with further prospects in West African region.

LWB argues that the impending water crisis in Lilongwe city, which currently experience frequent shortage due to increasing water demand necessitated the awarding of the project through restricted tender and that an ESIA would be done once the contractor submits final designs of the project.

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