CEC infrastructure at the wheeling charge that ERB has set. CEC argued that it was not cost-effective. Additionally, CEC was not given chance to negotiate the terms and conditions of use of its infrastructure with KCM. In fact, KCM has abrogated its contractual obligation under the PSA to pay the debt owed to CEC amounting to US$144 million. The court further held that the application of S.I no 57 of 2020 was too wide in its application in that it affects all CEC’s transmission and distribution lines instead of only affecting the lines supplying power to KCM.Furthermore, it was held that the decision of the Minster to declare CEC’s distribution and transmission lines as a common carrier was not for the purposes of the Act but was intended to assist KCM to avoid the effect of section 43 of the Electricity Act. The Minister’s decision is ultra-vires to the provision of section 15 (1) of the Electricity Act and therefore illegal. KCM failed to pay the debt and of US$144 million and CEC has the right under section 43 (1) to discontinue the supply of power.

In addition, the court found that the ERB, on the authority of the Minister, violated section 15 (2) of the Electricity Act by dictating the wheeling tariffs payable to CEC by ZESCO when the law specifically provides that terms and conditions ought to be agreed between the enterprise and the owner of the transmission or distribution. The dispute between CEC and KCM is of a commercial nature and required a solution that would be in the best interest of both parties. The Minister’s action amounts to expropriation to the extent that the Minister’s decision was ultra vires as he acted in excess of his power.

Finally, the High Court Judge, in quashing the decision of the Minister to declare all CEC transmission and distribution lines as a common carrier, stated that “unless it is repealed, section 15 will remain as it is, any attempt to negotiate the terms between CEC and any enterprise that wishes to use CEC network will be in violation of S.I No. 57 of 2020”.

6.0 Conclusion

In conclusion, it is clear from the reasoning of the Court that, the Minister under section 15 of the Electricity Act does have the power to declare any transmission and distribution lines as a common carrier. However, this has to be done for “the purposes of the Electricity Act”. When a statute is framed in that manner, it is intended to place some kind of limitation on the decision-maker.

In this case, the Minister is exercising the power under section 15 of the Electricity Act must do so in order to promote the policy and object of the Act.  KCM defaulted in its obligation and CEC was merely exercising its right under section 43 (1) of the Electricity Act. Therefore, the Minster’s decision was unfair and ultra-vires because it was only intended to give way to ZESCO Limited to supply electricity to KCM thereby preventing CEC from enforcing its right to recover the money owed by KCM.In addition, the Minster has no power to impose terms and conditions of use of the transmission and distribution lines that have been declared as a common carrier unless where the enterprise which owns the facilities is unwilling to negotiate the terms. In this case, CEC was willing to agree on the terms and conditions but the ERB dictating the wheeling tariff without consulting with CEC.

Further, the power conferred under section 15 (1) refers to the Minister declaring specific transmission and distribution lines as a common carrier. Thus, the Minister in the statutory instrument ought to have specified which transmission and distribution lines owned by CEC were being declared common carrier because CEC owns numerous transmission and distribution lines and supplies numerous customers on the Copperbelt and DRC. Taking into consideration that they only needed to supply one customer which is KCM, declaring ALL transmission and distribution lines to supply one customer would be seen a just a way to frustrate CEC or worse expropriate CEC infrastructure.

It is, therefore, clear that the Minster interfered in a commercial dispute between KCM and CEC in which CEC was trying to recover money owed by restricting the supply of electricity to KCM in accordance with the law. The statutory instrument No. 20 of 2020 pursued an objective other than for which the power under section 15 of the Electricity Act was conferred.

Note: As regards the procedural part of the case, even though CEC was the Applicant, the parties were cited as such (The People v AG and ERB) because judicial review is essentially a challenge of administrative functions. Therefore, because those functions are public and for the benefit of the republic, it is necessary to cite the very people on whose behalf the functions are performed.