Mathanga, former ESCOM chairperson who is also MEC Commissioner
* The four are facing charges of neglect of official duty contrary to section 121 of the Penal Code
* And Public Officers performing functions contrary to section 25A (2) of the Corrupt Practices Act
By Duncan Mlanjira
High Court Judge, Justice Sylvester Kalembera has ruled that Jean Chifundo Mathanga and three others, John Kandulu, Fanuel Nkhono and Emilius Kandapo — who are facing multiple charges under the Penal Code and the Corrupt Practices Act respectively, have case to answer as Electricity Supply Commission (ESCOM) is declared a public entity.
The four are facing charges of neglect of official duty contrary to section 121 of the Penal Code and Public Officers performing functions contrary to section 25A (2) of the Corrupt Practices Act.
In July 2020, the Anti-Corruption Bureau (ACB) arrested Mathanga, former Director of Procurement Nkhono, Senior Procurement Officer Kandapo and CEO Kandulu over unprocedural procurement worth K4 billion in 2016 at ESCOM.
Mathanga, who is also Malawi Electoral Commission (MEC) Commissioner, was serving as Board Chairperson at the power utility company and in its statement then, ACB principal public relations officer Egrita Ndala indicated that the four facilitated a procurement worth K4 billion without following laid down procedures.
The bureau charged the four with Abuse of Office contrary to Section 25 B of the Corrupt Practices Act and the ACB had indicated then that the matter was reported as complaint on 21st September 2016 and investigations established illegal procurement process.
The charges, as introduced by Justice Kalembera, “purport to show that these accused persons are public officers by virtue of their employment by ESCOM” but they had argued — after the four had taken their plea — that “ESCOM is a private company duly incorporated as such on 29th July, 1998 under the Companies Act”.
“Their prayer is that the charges against the said accused persons be dismissed,” Kalembera said in his determination.
Two of the four are being charged in their capacities as public officers appointed in the public service as ESCOM’s chief executive officer and director of procurement but they contended that ESCOM “is not a public company but a private company incorporated under the the Companies Act [thus] “the two accused persons are wrongly charged as public officers”.
In its defence, the State contends that ESCOM Limited is a public body fully owned by the government with a shareholding of 100% — 99% government and 1% for defunct Malawi Development Corporation (MDC), now owned by Public Private Partnership.
“It has further been deposed that ESCOM operates under the authority of the Public Procurement and Disposal of Assets Authority (PPDA) as a public body.
“Further that ESCOM employees submit their declaration forms under Public Officers (Declaration of Assets, Liabilities and Business Interests) Act.
“Thus, the State contends that ESCOM is a public body and its employees are public officers.”
In his ruling, Kalembera says ESCOM is a public body by virtue of its appointment by the government — quoting Section 3 of the Corrupt Practices Act (CPA) that defines a public body “a statutory body or any other appointed by Government”.
He contends that the government “solely appointed ESCOM” and that “it is only that government elected to use incorporation as a vehicle to create ESCOM as a private company, to effectively achieve its goals”.
“It therefore follows that anyone who works for a public body is a public officer.”
The Judge further quotes Section 8 of the Public Procurement Act that “requires public bodies to establish internal procurement committee, which ESCOM has done, and it has been under the supervision of the Office of the Director of Public Procurement in matters of procurement”.
“It is worth noting that the Public Procurement Act is only applicable to public bodies. No ordinary private company would be subjected to the PPA unless it operates as or is a public company.
“ESCOM Ltd is, therefore, no ordinary private company, if at all. It is the finding of this Court that it is a State-owned company, therefore, a public company.”
He also took cognizance that ESCOM executive vacancy application offers flighted in The Nation and The Daily Times of March 8, 2021, asked applicants to direct their applications to the Comptroller of Statutory Corporations which “augments the fact that despite the said ESCOM Ltd being incorporated under the Companies Act, as a private limited company, it has remained and still operates as a statutory corporation”.
“It cannot, therefore, be heard that in one vein, it can use public funds as a public company, and when such funds are alleged to have been misappropriated, then it cannot be held to account as a public company or public body, and that its officers cannot be held accountable as public officers for it is a private company.”
Kalembera also takes judicial notice that ESCOM vehicles use number plates for statutory corporations.
Thus he goes back to a recent decision by Justice Mbvundula in the Republic v Kandionamaso Padambo, Criminal Appeal No. 91 of 2009 in which he determined that ESCOM Ltd was not a public body in as 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 in so far as public bodies are concerned.
“Section 26 of the Companies Act referred to herein clearly makes ESCOM Ltd a state-owned company, there by a public company or body. It is, therefore, amenable to the CPA, so too its employees as public officers.
“The preliminary objections raised are therefore overruled and dismissed in their entirety. The trial of the accused persons shall proceed.”
Kalembera has since adjourned the case to June 9-12, 2021 from 9am for further hearing.