Judge Elita Phiri-Mwikisa of a High Court in Zambia has quashed last year’s decision by the Minister of Energy, Matthew Nkhuwa, to declare a private company’s electricity transmission lines as a common carrier.
By declaring infrastructure owned by the Copperbelt Energy Corporation (CEC), Zambia’s leading supplier of electricity to the mines, as “common carrier”, Nkhuwa effectively placed the company under obligation to provide its facilities to any entity that wished to use the transmission lines – provided they agreed the terms and conditions set by Zambia’s Energy Regulation Board (ERB) with CEC.
However, CEC dragged the Zambian government before the courts, arguing that Nkhuwa’s decision amounted to “expropriation” of its infrastructure.
In her ruling, Judge Phiri-Mwikisa of the Lusaka High Court said the Minister’s decision to declare CEC’s transmission and distribution lines as common carrier through the passing of S.I No.57 of 2020, took away CEC’s rights to negotiate terms and conditions of use of its infrastructure in view of the fact that any enterprise can use CEC’s infractructure at the wheeling charge that ERB has set, which CEC had argued was not cost effective.
“In fact, KCM has abrogated its contractual obligations under the Power Supply Agreement (PSA) to pay the debt owed to CEC amounting to USD 144 million. I agree with CEC that S.I No. 57 of 2020 is too wide in its application, in that it affects all the applicant’s transmission and distribution lines instead of only affecting lines supplying power to KCM,” Judge Mwikisa said.
She added, “The respondent’s decisions were illegal and tainted with procedural impropriety. All in all, I find that the applicant has succeeded on all grounds…I accordingly quash the decision of the minister of 29 May 2020, to declare the applicant’s transmission and distribution lines as a common carrier.”
Analysts had argued that the move was meant to aid Konkola Copper Mines (KCM), the local unit of Indian mining giant Vedanta, which has been under control government control since May 2019.