Former Electricity Supply Corporation of Malawi (Escom) chairperson Chokani Mhango has written government challenging the decision to remove him from Escom Board and send him to the National Economic Empowerment Fund (Neef).
In a letter dated July 9 2021 to the Comptroller of Statutory Corporations, Mhango’s attorneys Nyirenda and Msisha argue that Escom is a limited liability company under the Companies Act 2013 and that directors of the company cannot be removed from office without compliance with the provisions of Section 169 of the Companies Act.
“No person in the fiduciary position of trust can be removed from office without valid and adequate reasons and the
opportunity to respond to such reasons. As non-compliance with the provisions of the Companies Act cannot now be remedied, we invite you to rescind your decision. We have instructions to commence proceeding for judicial review if we do not hear from you within five days,” the letter reads.
Lawyer Modecai Msisha of Nyirenda and Msisha confirmed writing OPC notifying it that he would be asking the courts to determine the legality of removing Chokani Mhango from office without giving him any reasons.
Msisha said all Chokani eceived was a letter advising him that he was going to Neef, where he would also be board chairperson.
“I have written them (OPC) that I will be going to court to seek the court’s judgement on the legality of their action in removing him from office with no reason and then appointing him into another office.
“Unless there is a very good reason for doing that, the decision cannot stand and, certainly, even if they did have the reasons, they should have given him the reasons so that he should respond and then determine whether the reasons were adequate to remove him,” he said.
Msisha said OPC was yet to respond to he letter but was optimistic that they would get a response.
“In all fairness, I think they got our letter on Thursday last week so I expect them to respond this week but it is irrelevant whether they respond or not. We will move according to timeframes we have set for ourselves unless we receive a response that says ‘here are the reasons’ or ‘we are reversing the decision’,” he said.
On September 23, President Lazarus Chakwera appointed Mhango Chairperson of Escom Board; other members being John Gift Mwakhwawa, retired Justice Isaac Mtambo, Lloyd Katema, Corporate Executive Fredrick Changaya, Overtone Mandalasi, Dr Jacob Mazalale and George Mandele.
Law experts Abison Chitukula said legal instruments that create companies differ from company to company and this informs the composition of boards and how they can be dissolved.
He said, in the present case, it would be important to look at the Memorandum and Articles of Association of the corporation, adding that Escom was created under the Companies Act.
Chitukula, however, said in general terms, the Constitution demands that, where administrative decisions affecting someone’s rights are made, the affected person must be told the reasons for making the decisions.
Neef spokesperson Whyghtone Kapasule said the Neef Secretariat could not comment on the composition of its board.