Quashing of the Minister of Energy’s Decision to Declare All CEC Transmission and Distribution Lines as a Common Carrier: The People v Attorney General and Energy Regulation Board 2020/HP/0575
BY
Emmanuel Ng’ambi | LL. B (CUZ) | Trainee Attorney| Dispute Resolution, Energy Mining & Infrastructure| Reagan Blankfein Gates Legal Practitioners
1.0 Introduction
The Copperbelt Energy Corporation Plc (CEC) is an independent power generation, transmission, distribution, and supply company. It supplies electricity to the Copperbelt Province of Zambia and to mining entities in the Democratic Republic of Congo (DRC).
CEC owns, operates and maintains power transmission, generation, and distribution assets servicing customers in Zambia and the DRC, and is one of the largest international power traders in member of the Southern African Power Pool (SAPP) and a major developer of energy infrastructure in Africa respected for its skill in designing and operating transmission systems.
2.0 SI No. 57 of 2020
On 29 May 2020, the Minister of Energy issued statutory instrument No. 57 of 2020 declaring CEC transmission and distribution lines a common carrier to be used on such condition to be determined by the Energy Regulation Board (ERB). This decision was made pursuant to section 15 of the Electricity Act No. 11 of 2019. On the 31st May 2020, the ERB further directed CEC to charge a wheeling tariff of US$5.84/KW/month.
3.0 Declaration of common carrier
Section 15 of the Electricity Act provides that;
(1) The Minister may, by statutory instrument, declare a transmission or distribution line as a common carrier for the purposes of this Act.
Under subsection (2) it provides that;
A transmission or distribution line that is declared as a common carrier may be used for the purpose of an enterprise on terms and conditions that may be agreed between the enterprise and a person who owns or controls the transmission, distribution line concerned or,
in default of that agreement, as may be determined by the Energy Regulation Board, with the approval of the Minister.The interpretation of the forgoing section cited verbatim is that in exercising the powers under section 15 of the electricity Act, the Minister must ensure that the decision made in declaring transmission or distribution line a common carrier, is done for the purposes of the Electricity Act. Notwithstanding the same, in instances that the lines are declared a common carrier in line with section 15 of the Act, the common carrier may be used for the purpose of an enterprise on the terms and conditions that may be agreed between the enterprise concerned as the case may be. An enterprise is defined in