OPINION: Creck Hardware Deserves Fairness, Not Trial by Public Opinion

The recent public controversy surrounding the Electricity Supply Corporation of Malawi (ESCOM)'s procurement process and Creck Hardware highlights critical issues of administrative justice and adherence to public procurement laws. Allegations of political interference in ESCOM's decision-making, particularly an alleged presidential directive to halt a contract previously cleared by the Public Procurement and Disposal of Public Assets Authority (PPDA), have placed Creck Hardware under intense public scrutiny. This article argues that, irrespective of public sentiment, Creck Hardware is entitled to fairness and due process under Malawi's Public Procurement and Disposal of Public Assets Act, 2025, and the constitutional right to lawful and procedurally fair administrative action. The integrity of Malawi's procurement system hinges on upholding these legal principles over trial by public opinion or extra-legal directives.

Recent public discourse in Malawi has cast a shadow over the procurement processes of the Electricity Supply Corporation of Malawi (ESCOM), placing local supplier Creck Hardware at the centre of a contentious debate. Documents have emerged alleging political interference in ESCOM's procurement decisions, leading to a swift public narrative that portrays Creck Hardware as an undue beneficiary of wrongdoing. This narrative, largely driven by public opinion and media reports, risks prejudicing a company without a full and fair legal assessment of its conduct or the procurement process itself.

This article contends that the prevailing public debate, while highlighting legitimate concerns about transparency and accountability in public contracting, must not overshadow the fundamental legal principles of fairness, due process, and the rule of law. For practising attorneys and legal professionals in Malawi, the controversy surrounding Creck Hardware and ESCOM serves as a crucial reminder of the interplay between public scrutiny, administrative law, and the statutory framework governing public procurement. The focus must remain on whether established legal procedures were followed, and whether all parties, including Creck Hardware, have been afforded their constitutional and statutory rights to fair administrative action.

The core thesis is that Creck Hardware, like any other entity engaged in public procurement, deserves to be judged on the merits of its bids and adherence to the Public Procurement and Disposal of Public Assets Act, 2025, rather than being subjected to a trial by public opinion or extra-legal directives. The alleged intervention by the Presidency, particularly in a contract already cleared by the Public Procurement and Disposal of Public Assets Authority (PPDA), raises significant questions about the independence of procurement bodies and the sanctity of established legal frameworks.

Malawi's public procurement system is primarily governed by the Public Procurement and Disposal of Public Assets Act, 2025 (the PPDPA Act), which establishes a comprehensive framework for regulating public procurement and asset disposal. This Act replaced earlier legislation, including the Public Procurement Act of 2003, with a view to strengthening legal anti-corruption frameworks, mandating disclosure of beneficial ownership information, and defining clear procurement roles. The PPDPA Act, 2025, also established the Public Procurement and Disposal of Public Assets Authority (PPDA) as an independent institution responsible for the regulation, monitoring, oversight, and enforcement of public procurement and disposal of assets in Malawi.

The PPDPA Act, 2025, explicitly outlines key principles that must guide all public procurement proceedings, including transparency, accountability, non-discrimination, fairness, open competition, and efficiency. Procuring entities, such as ESCOM, are responsible for conducting procurement decisions, with the PPDA providing regulatory oversight and issuing 'no objection' approvals where required. ESCOM, as a state-owned company, is considered a public body, and its employees are public officers, making its procurement activities subject to these stringent public law requirements.

Beyond statutory provisions, the Constitution of the Republic of Malawi provides a foundational guarantee for administrative justice. Section 43 of the Constitution stipulates that every person has the right to lawful and procedurally fair administrative action, which must be justifiable in relation to reasons given, especially where their rights, freedoms, legitimate expectations, or interests are affected or threatened. This constitutional right underscores the importance of adherence to natural justice principles, including the duty to give a fair hearing and to avoid bias, ensuring that administrative decisions are not arbitrary or capricious.

The current controversy surrounding Creck Hardware and ESCOM's procurement of transformers and metering units highlights a direct challenge to these established legal and constitutional principles. Reports indicate two significant contracts: a K8.1 billion contract that the PPDA initially halted due to non-compliance with evaluation criteria, and a K12.24 billion contract for which the PPDA *granted clearance*. The critical point of contention arises from the alleged escalation of the PPDA-cleared K12.24 billion contract to the Office of the President and Cabinet (OPC), followed by an alleged presidential directive to halt the deal with Creck Hardware, reportedly questioning the ownership of the companies involved.

This alleged presidential intervention directly contravenes the spirit and letter of the PPDPA Act, 2025, which does not explicitly provide for presidential clearance or approval of individual procurement awards. Such an intervention, particularly after the independent PPDA has granted its 'no objection' approval, undermines the statutory mandate and institutional independence of the PPDA. Civil society organisations have rightly voiced concerns, preparing to take the OPC to court over alleged interference, arguing that such actions weaken institutional independence and threaten transparency and public trust in state institutions.

From an administrative law perspective, the alleged presidential directive, if proven, would constitute an administrative action that potentially lacks lawfulness and procedural fairness. The constitutional right to administrative justice demands that decisions affecting a party's interests be lawful, procedurally fair, and justifiable. Denying a contract to a company that has successfully navigated the statutory procurement process and received PPDA clearance, based on an extra-statutory directive and without clear, justifiable reasons provided to the affected party, would likely violate these fundamental rights. The principle of *audi alteram partem* (hear the other side) and the rule against bias are cornerstones of natural justice, which must be observed in all administrative actions.

Furthermore, the PPDPA Act, 2025, emphasizes non-discrimination and open competition. If Creck Hardware met all the stipulated procurement requirements and was duly cleared by the PPDA, then any subsequent arbitrary rejection, especially one influenced by political considerations rather than procurement merits, would undermine these principles. While public accountability is vital, it must be achieved through adherence to legal processes, not through public opinion overriding statutory procedures or through political interference that bypasses independent regulatory bodies. The ongoing legal challenge by CSOs underscores the gravity of these alleged breaches and their potential to set a dangerous precedent for public procurement in Malawi.

The situation also raises questions about the consistency of decision-making, given the PPDA's differing stances on the two contracts involving Creck Hardware. While the K8.1 billion contract was halted for non-compliance, the K12.24 billion contract received clearance. Any external influence on the PPDA's decisions, or the subsequent overturning of its decisions without a clear legal basis, erodes the authority's credibility and the predictability of the procurement system, which is essential for fostering a fair business environment.

The controversy surrounding Creck Hardware and ESCOM’s procurement process is a critical test for the rule of law and administrative justice in Malawi. It underscores the imperative for strict adherence to the Public Procurement and Disposal of Public Assets Act, 2025, and the constitutional guarantees of lawful and procedurally fair administrative action. While public scrutiny of government contracts is a healthy component of a democratic society, it must not devolve into a trial by public opinion that bypasses established legal mechanisms and denies entities their fundamental rights to due process.

Practitioners must remain vigilant in advocating for the independence of regulatory bodies like the PPDA and ensuring that all administrative actions, particularly in high-value public procurement, are transparent, justifiable, and free from undue influence. The outcome of the impending litigation by civil society organisations against the Office of the President and Cabinet will be a significant indicator of the judiciary's resolve to uphold the integrity of Malawi's procurement system and protect constitutional principles against executive overreach. Moving forward, safeguarding the fairness and predictability of public procurement is paramount for fostering investor confidence and ensuring that public resources are managed with the highest standards of accountability and legality.