The High Court of Malawi has ruled that government has no basis to bar Fisd Limited from participating in public contracts because of the ongoing criminal proceedings against four of the company’s directors.

Zomba-based High Court Judge Mzonde Mvula also quashed a decision by Southern Region Water Board (SRWB) to bar the company from a K350 million contract , describing it as unlawful and tantamount to passing a guilty verdict contrary to constitutional provisions under Section 42 (2).

Nankhuni: Won’t be
denied contracts

The judge has since ordered SRWB to award the contract quoted at K347 354 628 to Fisd.

Mvula said : “The wi thholding of the contract by government in this contract and indeed all contracts pended against the claimant [Fisd] has no backing of law.

“No legal provision under PPDA [Public Procurement and Disposal of Assets law] and indeed our laws sustains that act. The court in proper exercise of its discretion grants the application for declaratory orders sought.”

The judge further pointed out that the law governing public procurement does not provide for exclusion from contracts suspects of criminal proceedings.

Early last year, SRWB invited tenders for the sinking and construction of boreholes at Malawi University of Science and Technology (Must) and Liwonde Scheme under Procurement Reference No: SRWB/W/MUST/ LIWONDE/21/01.

F i s d e m e r g e d successful, but could not be awarded the contract due to criminal proceeding against its four directors. SRWB communicated the same to the firm in a letter dated August 6 2021 in line with the Attorney General’s (AG) legal opinion dated June 24 2021.

I n a n i n t e r v i e w yesterday, Fisd lawyer Gift Nankhuni said the judgement meant that no government agency wou l d d e n y t h em contracts on the basis of the ongoing court case.

SWRB chief executive o f f i c e r D u n c a n Chambamba yesterday said the judgement is without consequence because they had already awarded the contract to Fisd based on fresh advice from the AG’s office.

“As we are talking, we have a contract with Fisd so it does not affect us,”

Impor t e r s Limi t ed (PIL), a consortium of oil marketing companies which complements Nocma in the fuel imports, will be left with 10 percent from its current 50 percent share.

M a t o l a j u s t i f i e d the move, saying the government wants to avoid a situation where fuel would be scarce like in 2010-2012.

The situation led government to establish Nocma and to solve the fuel shortage problem, the Malawi Energy Regulatory Authority (Mera) introduced the Bulk Procurement System and Strategic Fuel Reserves (SFR) which necessitated changes in the mode of purchase of fuel and its storage.

But in an interview yesterday, PIL general manager Martin Msimuko said as long as they do not have it in writing from the ministry, they would not comment.

He said that in November 2021, PIL requested the position on the matter the matter and were told that there is no change in policy.

Said Msimuko: “The position remains that we are a 50-50 player and that they will advise us if there will be any changes.

“So, we are waiting for that position shift from the ministry and that is when we will be able to comment he said.

In a telephone interview yesterday, AG Thabo Chakaka Nyirenda said he had given the advice based on the court order.

He said: “There was an earlier court order when the firm [Fisd] first obtained an injunction and my advice was in line with the order because court orders have to be obeyed.

“I must stress that I did not overturn the opinion provided by my predecessor [Chikosa Silungwe], this is an opinion of the office. My direction was simply to have them comply with the interim court order before this one which is permanent.” Four Fisd directors are facing trial for allegedly receiving double payment in an African Development Bank-funded project through the Ministry of Agriculture.

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