Judge allows Chilivumbo to challenge fuel hike

High Court Judge in Malawi’s administrative capital Lilongwe, Justice Chifundo Kachale, has ruled that citizen Khalidwe Chilivumbo has sufficient interest  to challenge against the legality of fuel price increases  by he Malawi Energy Regulatory Authority (MERA).

MERA on 8 November announced that petrol would now be selling at 380 Malawi Kwacha (US$2.28) per litre, up by 31 per cent. Diesel went up by 38 per cent to 360 Malawi Kwacha (US$2.16) while kerosene jumped by 10 per cent to 171 Malawi Kwacha (US$1.02).

But Chilivumbo a Area 18 resident and other concerned citizens through lawyer Wapona Kita challenged the fuel price increase, saying they were illegal since MERA – the energy regulatory authority – had no Board of Directors to approve the hike.

Wapona Kita: Happy with the ruling

According to the ruling delivered on Tuesday, Justice Kachale said: “Though intensely contested by parties, my court does not find the question of standing to be difficult at all.

“The decision to increase fuel prices has affected many if not all Malawians. In that regard, even if the Applicant was shown to own no vehicle, my court doubts whether that would automatically disqualify him from pursuing the present process.”

Justice Kachale went on to add :”The Constitutional imperative for accountability exercise of public authority espoused in section 12(1)(a) of the Malawi Constitution is under scrutiny in the proposed judicial review process. The constitutional guarantee of an effective remedy under Section 41(3) of the Constitution enjoins my court to uphold the grant of leave in the peculiar circumstances of this case, despite the terms of section 43() of the Energy Regulation Act and Section 40 of the Liquid Fuels and Gas (Production and Supply) Act.”

The judge has since set hearing of the substantive judicial review on 23rd January, 2012 .

Lawyer Kita said the he was “happy” with the ruling.

“On our part, we are very happy with this rulling. It is landmark rulling that will enrich our jurisprudence on judicial review cases, and we are ready for the hearing of the substantive case,” Kita told Nyasa Times.

Under Section 9(c) of the Energy Regulation Act, only the Board of MERA has the powers to approve prices of energy sales and there was no Board at MERA  when fuel  prices were adjusted, However , President  Bingu wa Mutharika on 13 December unveiled a new MERA Board chaired by Lyton Zinyemba.

Kita said as far as the new prices were effected while MERA had no board, the new board could not act retroactively.

The legal case comes amid the worsening fuel supply situation in Malawi with long fuel queues being the order of the day as motorists spend nights at service stations waiting for fuel.

Malawi has not been able to procure enough fuel supplies following the dismal performance of the country’s chief foreign exchange earner, tobacco, and the suspension of donor inflows in reaction to the Mutharika administration’s ‘bad economic and political governance’.

Malawi requires at least US$30m per month to satisfy its fuel needs. Incidentally the 2009/10 tobacco season fetched about that much.

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