AG refuses to pay K325m to SA lawyers

The Attorney General (AG) Thabo Chakaka-Nyirenda has refused to pay over K325 million as outstanding legal fees to South African lawyers that represented Malawi Electoral Commission (MEC).

Before the South African lawyers partnered with local lawyers to take up an appeal against the decision of the Constitutional Court that nullified the May 2019 presidential election results which declared Peter Mutharika the winner, they had already pocketed 50 percent of $788 500 legal charges.

The remaining $394 250 (over K325 million), was to be paid after the delivery of the appeal judgement in the Malawi Supreme Court, according to the agreement, but MEC, which filed the appeal alongside Mutharika of Democratic Progressive Party (DPP), went on to lose the case.

The South African lawyers, Mboweni Maluleke Inc. Attorneys, have from the time Chikosa Silungwe was AG been reminding MEC in writing to pay the balance.

MEC engaged the South African lawyers when Kalekeni Kaphale was AG .

But Chakaka-Nyirenda, responding to the South African lawyers in a letter dated November 15 2021, acknowledged letters from the lawyers bearing diverse dates addressed to MEC, which were passed on to his office with instructions to respond to them.

“The Electoral Commission informs me that the contract was frustrated and no consideration passed; facts you fully know and understand. In view of the foregoing, your claim is wholly denied,” he wrote.

The AG, asked to comment on the matter in an interview on Thursday, said the issue was straightforward and he was not going to pay anyone in this case, adding: “I am not Father Christmas”.

The AG said there was no response to his letter.

In a letter dated May 24 2021 from the South African lawyers to MEC when Silungwe was in office, the lawyers, referring to the appeal case of 2019 of Saulos Chilima and Lazarus Chakwera Vs Mutharika and MEC, say they noted from a MEC e-mail of April 9 2021 that the commission indicated that the Ombudsman set a deadline of June 30 2021 to analyse and report on the circumstances that led into the lawyers’ retainership agreement between them and MEC.

“We respectfully hold a different view as the directives of the Ombudsman in her report at page 66 paragraph 9.0, roman figure (i) states thus; MEC through the new Commission and advice from the current AG should bring the matter of the retainer agreement between MEC and Mboweni Maluleke Inc. Attorneys to a logical conclusion,” they wrote.

The Ombudsman had observed that as a country, Malawi could not afford to have such loose ends.

“This should be done and the report of the same should be furnished to me by 30th June, 2021,” the Ombudsman had advised.

The foreign lawyers proposed that the parties to the matter engage to bring it to a logical conclusion as the Ombudsman had already conducted an investigation and issued her directives.

“It is our view that starting a fresh investigation will only prolong the process of bringing this matter to a logical conclusion and undermine the Ombudsman and what is directed in her report.

“We propose that we be guided by paragraph 7 of the Ombudsman’s report and start our engagements in line with sub-paragraph 7.3 dealing with the issue of legal fees,” they wrote, and in essence, proposing settlement of the 50 percent legal fees.

The lawyers explained that around February 2020, their office was contacted telephonically by the former MEC chairperson Jane Ansah, when it was indicated to them that MEC was urgently looking for attorneys to represent them in litigation of a constitutional nature relating to the disputed outcome of the national elections in Malawi, which was to be adjudicated in the Supreme Court of Appeal.

MEC, according to the letter, needed a lead counsel to be a Senior Counsel who was vested with constitutional and electoral legislation within the Sadc region.

“We indicated to MEC that we will be in the position to take the instruction and we needed to arrange a formal consultation in South Africa with them, where we will engage Senior Counsel who will work with a Junior Counsel on our brief.

“It was also agreed that we will need a local (Malawi) firm as instructing attorneys, as required by law. The formal consultation was then scheduled for the 02 March 2020 at the Chambers of Adv. Ntsebeza SC, where our legal team met with the former MEC chairperson and the former AG,” the lawyers explained.

They said they were thoroughly briefed on the matter, agreed on the terms of engagement and due to the urgency, complexity and voluminous nature of the brief, they indicated that they would clear their diaries and not take any other briefs until finalisation of the instruction from MEC.

“We were further given instructions to, on an urgent basis, attend to finalise the drafting papers and research on the law for the stay of execution application that was to be heard in court on the 11 March 2020. This necessitated our trip to Malawi as we also had to apply for the admission for practice of both counsel,” they wrote.

MEC was widely accused of hiring expensive lawyers from South Africa in a matter commentators said it had no interest. It was faulted for making the appeal against the findings of the Constitutional Court when interested parties should have been Mutharika and his DPP only.

the presidential election in February 2020 due to massive irregularities Chilima and Chakwera proved during the historic hearing in the Constitutional Court.

The Supreme Court of Appeal later upheld the decision by the Constitutional Court.

Chakwera, who now partnered with Chilima under the Tonse Alliance ticket, went on to win the fresh court-sanctioned presidential election in June 2020, pitting Mutharika and his DPP.