By Isaac Zulu
The Zambian Civil Liberties Union has written to the Chief justice to set up a tribunal against Energy minister Peter Kapala over abuse of office allegations for allegedly assisting companies to acquire pecuniary advantage in the supply of low sulphur diesel.
In a complaint letter dated November 14, 2023m addressed to the Chief Justice and accessed by Daily Revelation Newspaper, ZCLU deputy executive director Maurice Makalu explained that in 2022, Agro-Fuel Investments Limited was awarded a contract to supply and deliver 100,000 metric tonnes of low sulphur gas oil and to finalise the conversation of the TAZAMA Pipeline to become a carrier of finished products, asserting that Kapala, on dates unknown, facilitated an additional single sourced contract for Agro-Fuel Investments Limited to supply diesel, which contract was later reported in the Daily Nation Newspaper and Zambian Business Times as having been suspended between September 15 to 21, 2023.
ZCLU alleged that Kapala, who is nominated member of parliament, has breached Section 4(a)(e) of the Parliamentary and Ministerial Code of Conduct Act by assisting companies to acquire pecuniary advantage in the supply of low sulphur diesel by using information not available to the public, soliciting and accepting transfers of economic benefit to the entities named in this complaint, arguing that this is a matter of high public interest.
“On September 1, 2023 minister Kapala offered approval to Devon Oil Zambia Limited, to supply, in partnership with Glencore Energy UK Limited, 100, 000 metric tonnes of diesel in the month of September 2023. While the fuel carrying vessel was marooned at sea in Dar es Salaam, minister Kapala, cancelled the offer and approval granted to Devon Oil Zambia. According to reported investigations done by News Diggers, soon after the cancelling the fuel supply approval to Devon, minister Kapala turned to Agro-Fuel Investments Limited,” Makalu stated
Makalu argued that the actions taken by Kapala in the procurement of fuel were uncompetitive and irregularly executed, adding that Kapala violated the Constitution.
“Another letter authored under the hand of minister Kapala has surfaced indicating that the minister had, on September 2, 2023, once again unilaterally given approval to another oil company, Transworld Petroleum Limited, to supply 100,000 metric tonnes of gas oil in December 2023. My Lord the Chief Justice, these approvals were uncompetitive and unilaterally executed. Further, the actions by the minister amount to abuse of office and breach of Section 4(a)(e) of the Parliamentary and Ministerial Code of Conduct Act, requiring investigations by a competent Tribunal set in accordance with the law. The complaint asserts that minister Kapala violated these provisions by assisting companies in acquiring pecuniary advantage in the diesel supply through the TAZAMA pipeline,” he stated.
Makalu argued that Article 261 of the Republican Constitution required public office holders to adhere to a code of conduct, and that Section 4 of the Parliamentary and Ministerial Code states that a member breaches the code when they assist another person to acquire pecuniary advantage or by soliciting or accepting transfers of economic benefit.
Section 4 states that: “A Member shall be considered to have breached the code of conduct if he knowingly acquires any significant pecuniary advantage, or assists in the acquisition of pecuniary advantage by another person, by: (a) improperly using or benefiting from information which is obtained in the course of his official duties and which is not generally available to the public, (b) ….. (c) ….. (d) ….. or (e) soliciting or accepting transfers of economic benefit, other than …”
Makalu argued that from the above actions, Kapala assisted the preferred companies in the acquisition of pecuniary advantage in the supply of Gasoil using the TAZAMA pipeline by soliciting or accepting transfers of economic benefit, and that the Energy minister assisted in the acquisition of pecuniary advantage in the supply of Gasoil by the preferred companies that were given approvals based on information only Kapala had in the course of his duties and which information was and is not generally available to the public.
He has since called for the establishment of a Tribunal to investigate the alleged irregularities in the procurement of gas oil, adding that his organization will prove before the Tribunal that the minister had breached the law.
The complaint further argued that Kapala’s actions constitute an abuse of authority of office, as procurement approvals fall outside his jurisdiction, saying such decisions should be made by the Energy Regulation Board or a procurement committee within the Ministry of Energy.
Makalu argued that the role of the minister was that of giving policy direction and not granting approvals for procurement of either goods or services, with it being a requirement of the law that such business is guided by the Public Procurement Act 2020, the Public Procurement Regulations, 2022 (SI No. 30 of 2022) and the Energy Regulation Act, 2019 and the Energy Regulation (General) Regulations, 2021 (SI No. 41 of 2023).
He stated that SI No. 30 of 2022 detailed the principles followed in procurement, namely transparency, competition, economy, efficiency, effectiveness, fairness, integrity, value for money and accountability
“The above principles also apply in the procurement of gas oil under the Energy Regulation Act, 2019 and Statutory Instrument number 41 of 2023. The grant of approvals done by the minister Kapala, therefore, violates these principles. But for purposes of this complaint, the Minister Kapala’s action assisted companies that were granted approvals under his hand to acquire pecuniary advantage in the supply of Gasoil using the pipeline and benefiting from information which was only available to the Minister and his staff and which information was not generally available to the public” Makalu stated.
He put it to the Chief Justice that breach of part II of the Ministerial Code, once established, had severe consequences, as Article 72 (3)© of the Constitution enacts: “72. (3) The office of a nominated Member of Parliament becomes vacant if the member, © acts contrary to a prescribed code of conduct.”
“In light of the alleged breaches, we request Your Lordship to appoint a Tribunal to investigate the matter under Sections 13(1)(3) and 14 of the Parliamentary and Ministerial Code of Conduct Act,” stated Makalu. “We fervently believe that we have adequately made our case and this step is crucial for upholding the Rule of Law, which the Republican President, His Excellency, Mr Hakainde Hichilema has committed his administration will uphold and defend during his tenure as President. Your Lordship, we now await your response.”
