By Merlyn Mwanza
Dr Mbita Chitala says he will be more than ready to defend himself against potential litigation from CEC, arguing that it is a fact that the company abandoned supplying power to residents on the Copperbelt with Zesco taking up the burden to do so.
Dr Chitala also argued that it was true that Zesco did not know how much power was consumed by mining companies, and also did not know the tariffs CEC charged mining companies.
“It is factual that CEC declared a load factor of about 100% . It is true CEC announced to stop supplying power to KCM which was an existential threat to Zambia. It is factual that the BSA gave CEC a monopoly to supply power to the Copperbelt and in fact CEC took ZESCO to court and ZESCO was forced to pay about US$ 10 million to compensate CEC,” Dr Chitala argued. “It is factual that the contracted capacity was 329 MW. It is factual that CEC refused to have the errors corrected. It is factual that ZESCO commissioned 3 power plants and CEC was a beneficiary. It is factual that ZESCO reported to its shareholders the impasse between ZESCO and CEC. It is factual that the government issued a Statutory Instrument to declare all transmission assets of CEC common carrier.”
Dr Chitala denied the amputation suggested by CEC that he defamed them.
“As you know, ZESCO LIMITED is a public interest asset and the CEC PLC where the government has also an interest, are public institutions where the public ought to know how the assets are managed. Their activities are always in public domain. The defenses of justification, fair comment and privilege would therefore be sustainable,” Dr Chitala argued. “The statements in the book are within the relevant privilege and that something published in the occasion of privilege is not actionable. In this matter, there is both absolute privilege of the communications I had with the Minister of Energy then and other government officials as well as qualified privilege and communication with the public which was not out of malice.”
He stated that he was surprised that CEC would want to resurrect a matter that has since died and no longer in the minds of the citizens following what he described as the positive public debate and commence an action which would not be in the interest of both parties as it will compel him and others to reveal facts that may result in unnecessary costs such as a run on CEC in general and the stocks of the over 4,000 Zambian Shareholders in CEC PLC in particular.
“However, if your client really wants to follow the litigation route, it is their constitutional right to commence any action where they feel aggrieved. In that event, I will be more than happy to receive process and will defend myself to the best of my ability,” Dr Chitala stated. “In this regard, I wish to alert you that I will also at the commencement of trial if you so decide to take that route, apply to court for a Security of Costs before commencing my defense.”
CEC has demanded a retraction ion and apology for alleged defamation by Dr Chitala over what appeared in Part C of his book that was published in 2021 concerning the affairs of ZESCO Limited during the period 2014-2021 when he served as Chairman of ZESCO Limited.
“It is my considered opinion that the paragraphs you have cited in the book do not amount to defamation as they offend the constitutional right of free speech of citizens and that paragraphs you have cited in your letter were justified and fair comment in public interest. Much of the content of the book was also privileged,” Dr Chitala stated. “The paragraphs you picked from the book and presented in your letter were transient, transparently unconnected with any moral failing. It is my considered view that any right thinking member of our society cannot think that the statements you cited in your letter were harmful to the reputation of your client. In fact, it is true that your client’s reputation has never been damaged as a result of the book and this can be evidenced by: (i) the rising indices of your client’s stocks at the Lusaka Stock Exchange (LUSE) and (ii) the fact that your client and ZESCO finally entered into a new Bulk Purchase Agreement (BSA) with your client in 2022 which addressed several of the matters that were discussed in the book.
“In fact, the Chief Executive of your client Mr. Owen Silavwe has publicly acknowledged the corporate difficulties that existed between your client and ZESCO Limited and the government then in his presser in the Mast Newspaper dated 28th September, 2022.
You will also agree with me that the Constitution of Zambia provides me and all other citizens the right to freedom of thought, conscience and religion.”
Dr Chitala further stated that the Republican constitution and other statutes Zambian is a party to provide for the right of freedom of expression, which right he said includes the freedom to hold opinions and receive and impart information and ideas without interference by public authorities and regardless of frontiers.
“In this matter, it is apparent that the Defense of Justification will be adduced where it will be proven that the matters that were raised in the book were substantially true and in fact and that the words did not in any way injure your client’s reputation,” stated Dr Chitala. “The Defense of fair comment will also be pleaded where it will be shown that the words used in the book were my criticism of the matters of public interest in the form of comments on a public asset ZESCO and your client in which the Public has an interest and upon privileged statements of fact. The statements in the book were made honestly believing the statements to be true and that the statements were not actuated by malice.”
