High Court rules ESCOM is a public body, employees are public officers

The High Court in Blantyre has ruled that the Electricity Supply Corporation of Malawi (ESCOM) is a public entity and that all its employees and directors of its board are public officers.

The ruling is in relation to the case in which former ESCOM board member Dr. Jean Chifundo Mathanga, Chief Executive Officer John Kandulu, Fanuel Nkhono and Emilias Kandapo, were challenging the charges levelled against them by the Anti-Corruption Bureau (ACB) in July 2020.

They were arrested them for mis-procurement, and before trial commenced, the accused persons argued that they had been wrongly charged by the ACB as public officers.

Jean Mathanga and colleagues have lost a legal challenge on ESCOM legality.

They argued that ESCOM is a not public body based on the ruling by Justice Mbvundula in The Republic v Kandionamaso Padambo, in Criminal Appeal No. 91 of 2009.

On the other hand, the State argued that, among others, ESCOM Limited is a public body, since it is fully owned by the Malawi Government with a shareholding of 100 percent.

And delivering the ruling on the matter on Tuesday, Justice Sylvester Kalembera agreed with the State, stressing that ESCOM is a public body by virtue of its appointment by the government.

Kalembera added that ESCOM was appointed by the Malawi Government by virtue of it being the sole owner of the company with 100 percent shares as evidenced in its Memorandum of Articles of Association filed with the Registrar of Companies.

“I have gone through the recent decision in The Republic v Kandionamaso Padambo, Criminal Appeal No. 91 of 2009, where my learned brother, Mbvundula J, found that ESCOM Ltd was not a public body in so far as the provisions of the Corrupt Practices Act were concerned. However, I beg to differ, and it is my finding, on the observations herein, that the CPA cannot be read in isolation is so far as public bodies are concerned. Section 26 of the Companies Act referred to herein clearly makes ESCOM Ltd a State-owned company, thereby a public company or body. It is therefore amenable to the CPA, so too its employees as public officers,” reads part of his ruling.

He emphasized that this ‘means that, and it is an undisputed fact, that it is the Malawi Government which solely appointed ESCOM and it is by virtue of this sole appointment that ESCOM is a public body as per the definition attached to it by section 3 of the Corrupt Practices Act (CPA).

He also emphasized that according to CPA, ESCOM is a public body and it therefore follows that anyone who works for a public body is a public officer.

“The CPA defines a Public Officer as any person who is a member of or holds office in the service of a public body, whether such membership, office or employment is permanent or temporary, whole or part time, paid or unpaid. Employees of ESCOM Ltd are therefore public officers under the CPA [Corrupt Practices Act]. All in all, ESCOM Ltd is a State-Owned company hence a public body. Being a public body, its employees are public officers in as far as the CPA and the Penal Code are concerned. So too members of its Board are public officers,” he concluded.

Meanwhile, Kalembera has adjourned the case to June 9 to 12, 2021, when the trial is expected to start.

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