By Isaac Salima:
The government can, at least for now, proceed to borrow money from commercial banks for actualisation of the Salima-Lilongwe Water Project after the Supreme Court of Appeal Tuesday stayed an injunction that Forum for National Development (FND) obtained on the issue.
FND obtained the injunction from the High Court Commercial Division in Blantyre, effectively restraining the government from continuing with its plans to borrow money from National Bank of Malawi and NBS Bank for the project to be implemented by Khato Civils.
FND argued that the government should first resolve issues surrounding the project.
However, Attorney General (AG) Thabo Chakaka Nyirenda sought a stay order from the Supreme Court.
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Making his ruling in Blantyre, Justice Dingiswayo Madise directed that the case be heard at the High Court Civil Division as it is civil in nature.
Madise said, contrary to what FND was saying, the case is not commercial in nature.
He also ruled that the two banks and Khato be excluded from the case and that the matter proceed for judicial review, with the President, Minister of Finance and the National Assembly as respondents.
Lawyer representing Khato Chancy Gondwe, Lester Mwantisi and Tusume Mwaungulu representing NBS and National banks, respectively, and also Holmes Mazambani and Zelitwile Chipembere for FND, made their submissions to the court.
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The AG argued, among other things, that FND cannot represent Malawians as they are represented by elected representatives who passed the Loan Authorisation Bill.
He further said FND, being a private limited firm, lacked sufficient interest in the matter.
Madise agreed with the defence that the matter involved competing policy interests on the public purse which the courts would be ill equipped to deal with, hence the matter was not justiciable.
He also agreed that FND demonstrated no harm that was occasioned to it as a result of the decision to borrow the money from the banks.
Commenting on the ruling, Chakaka Nyirenda said he was pleased that the court agreed with issues they raised.
“This means that the injunction is no longer there.
“However, it is not up to me to make a decision on whether the processes of obtaining the loan should proceed or not but they are free to continue,” he said.
FND halted the government’s intentions of obtaining a loan of K105 billion from the banks to finance the projects.
Judge Ken Mandala had been hearing the matter at the Commercial Division where, at some point, he accused the AG of sneaking his way to the Supreme Court to obtain a stay order when the court [commercial] had asked him to make formal his application for the stay.
The project, which has been facing financing challenges, seeks to tap water from Lake Malawi in Salima to Lilongwe.
The World Bank, in its 17th Malawi Economic Monitor, queried the process of obtaining the loan, saying information on the conditions for the loan were not provided to Parliament for vetting nor was the loan in the budget for the 2023- 24 financial year.
