Comesa Court retains Justice Mtambo

The Comesa Court of Justice in Lusaka, Zambia, has retained Justice Michael Mtambo on its panel, dismissing an application by Malawi Mobile Limited (MML) to have him out on fears that he would not be impartial.

MML dragged Malawi Government and Malawi Communications Regulatory Authority (Macra) to the Common Market for Eastern and Southern Africa (Comesa) Court after the Malawi Supreme Court of Appeal reversed a High Court of Malawi judgement that awarded the mobile company $66 million (about K47.5 billion at the current exchange rate).

MML, a private company that sought to establish mobile phone business in the country, sued Malawi Government and Macra for an alleged illegal termination of a contract following some disagreements.

MML wanted Mtambo to recuse himself from a panel of five Comesa Court judges. The other judges are Justice president Lombe Chibesakunda, Abdalla el Bashir, David Cheong and Wael Rady.

MML lawyer David Kanyenda feared that Mtambo was going to be biased because he sold his law firm to him [Kanyenda], and his other business partners before the judge was appointed to the Malawi Bench and an ensuing landlord and tenant relationship between them.

Kanyenda had further argued that Mtambo was going to be a judge in his own case given that he is a member of the Malawi Judiciary and one of the issues was the composition and conduct of the Malawi Supreme Court of Appeal.

MML had argued before the Comesa Court that the Malawi Supreme Court of Appeal erred in its judgement and was also unlawfully constituted through the participation of Justice Rezine Mzikamanda in the ruling of the matter he was not involved during the hearing.

Attorney General (AG) Kalekeni Kaphale, who led a State team in Lusaka, presented his arguments and dismissed fears of biasness, arguing Mtambo is a man of integrity and took an oath to always be impartial.

And making its ruling on MML’s application on July 23, the five-judge-panel observed that the judge’s acquaintance with a lawyer does not ordinarily require disqualification.

The court said relationship between judges and lawyers is not sufficient to give rise to likelihood of apprehension of bias arising from such relationship unless it is established that there is a real danger of bias on the part of the judge, in the sense that he might unfairly regard with favour or disfavour the case of a party under consideration by him.

“This Court finds that the respondent has not been able to establish the existence of an intimate relationship arising from the commercial relationship in the instance case. The purchase of the judge’s law firm and landlord and tenant relationship did not necessarily engender a close relationship between the two parties…” the judges observed.

They agreed with the AG Kaphale and went on to dismiss that ground as basis for Mtambo’s recusal.

On the ground Kanyenda raised, that Mtambo, being a member of the Malawi Judiciary would mean he would be a judge in his own cause and that one of the issues was the composition and conduct of the Malawi Supreme Court of Appeal, the Comesa Court judges agreed with Kaphale that there was no evidence that the judge would throw away his judicial oath and become partial.

“We, therefore, see no reason why the judge cannot disagree with the conduct of the Supreme Court of Appeal of Malawi at the Comesa Court if that were called for,” the judges said.

And they said they found no merit in that ground and dismissed it.

The Comesa Court has since set October this year to hear the substantive matter. n