THE Malawi Law Society (MLS) has invoked the High Court’s indulgence in the saga of a project in which government through Lilongwe Water Board (LWB) seeks to tap water from Lake Malawi in Salima to the Capital City.
In a Judicial Review Cause No. 16 of 2017 where LWB, the Minister of Agriculture, Irrigation and Water Development and his counterpart at the Natural Resources, Energy and Mining and the Director of Environmental Affairs are respondents, High Court Judge Redson Kapindu has granted MLS leave to apply for judicial review.
Kapindu says after examining the issues raised by MLS, he is satisfied that the lawyers’ body has raised matters that are fit for further consideration and investigation at a full hearing of judicial review as MLS has an arguable case.
Among others, the heart of the matter is the absence of an Environmental and Social Impact Assessment (ESIA) which was apparently supposed to be undertaken before the project starts.
MLS through lawyer Bright Theu argues that in the absence of the ESIA, the project cannot proceed to implementation stage. “…In the absence of an [ESIA] for the project, [the Director of Environmental Affairs and the Minister of Natural Resources, Energy and Mining] are legally obliged to direct suspension of the implementation of the project…,” reads part of MLS’s arguments made before the court.
The applicant further argues that by their failure to intervene, the two government officials abdicated their duty.
In the ruling, MLS has also been granted its request that it should access the Project Brief, the contract between LWB and Khato Civils Limited—which was awarded the contract—and any relevant document concerning the project.
“The MLS states that it needs such information in order to properly prosecute the judicial review application herein… I am persuaded that this request falls within the remit of the right of access to information under Section 37 of the Constitution,” reads Kapindu’s ruling.
Meanwhile, in a letter to MLS President, Khumbo Soko, which is quoted in the court’s ruling, the Director of Environmental Affairs admits that an ESIA is required for a venture such as the SalimaLilongwe Water project.
“In terms of [ESIA] for the Salima-Lilongwe Water Project, I wish to advise as follows: (a) The [ESIA] report for the proposed project has not yet been submitted to the Department; (b) In accordance with the national [ESIA] process, LWB as a project developer submitted to the department a project brief for the project on 4th January 2017.
“The project brief was reviewed by the Department and LWB was advised to conduct an ESIA, based on agreed upon [Terms of References] through our letters dated 19th January 2017 and 6th February 2017,” Kapindu quotes the Director of Environmental Affairs.
The judge agrees that from that information, it is clear that an ESIA has not yet been conducted and that a satisfactory ESIA is a condition precedent to the implementation of a project.
On the other hand, Kapindu has shot down MLS’s application for an injunction restraining relevant parties from implementing the project “and in effect suspending the implementation of the project pending final determination of this matter or a further order of the court”.
Instead, he has directed that the application should be made inter partes, to be heard on May 9. In a statement dated April 18 2017, that preceded the High Court’s 21 April ruling, Soko and MLS Secretary, Michael Goba Chipeta, have accused the Minister of Agriculture, Irrigation and Water Development; the Director of Environmental Affairs and the Minister of Natural Resources, Energy and Mining of failing to take action on the matter.
“Tendencies to disregard the law by public authorities severely threaten rule of law, good governance and human rights traditions that are fundamental to human progress and development in our country and the whole world,” the statement says.
The Salima-Lilongwe Water Project continues courting controversy with different Parliamentary committees expressing different views, some of them divided on the saga.
Both the leadership of the opposition and the government have also been accused of failing to speak on the saga apparently because they are compromised because they accepted ‘gifts’ from Khato Civils Limited owner, Simbi Phiri.