The Common Market for Eastern and Southern Africa (Comesa) Court has thrown out a K97 billion claim against the Malawi Government filed by private firm Malawi Mobile Limited (MML) for alleged illegal termination of contract.
Sitting at the Comesa base in Lusaka, Zambia, the Comesa Court panel led by judge Lobe Chibesakunda and comprising Malawian judge Michael Mtambo and judges Abdalla Bashir, David Cha Cheong and Wael Wang, based its decision on Article 3 and 6 of its treaty which the court said, read together, do not allow residents of a member State to drag to court a member State.
However, the court has ordered each party to bear own costs of the proceedings, effectively saving the private company a potential huge bill from Malawi Government on the matter.
MML, a private company that sought to establish mobile phone network in the country, sued government and the Malawi Communications Regulatory Authority (Macra) for billions, alleging illegal termination of contract.
Macra had terminated MML’s contract over contractual disagreements, leading to a protracted legal battle which at some point saw the High Court of Malawi awarding K55 billion compensation to the company before the Malawi Supreme Court of Appeal reversed the lower court ruling.
The Supreme Court decision saw MML rush to the Comesa Court for redress, alleging that the court failed to follow procedure in delivery of its ruling.
Attorney General Kalekeni Kaphale, speaking in a telephone interview from Lusaka where he was representing government alongside another Ministry of Justice and Constitutional Affairs lawyer and spokesperson Apoche Itimu, welcomed the relief from the court, saying the court had ruled that the cancellation of the contract was not in breach of Comesa Treaty; hence, the court had no jurisdiction on the matter.
He said: “Government has won the appeal in the Malawi Mobile Limited case. The appeal court for Comesa has ruled that it has no jurisdiction to hear a reference regarding a breach of municipal laws that have no bearing to the treaty. We have saved government a whopping K97 billion in potential exposure.”
Itimu described the ruling as pleasant, noting that the Comesa Court has agreed with the Malawi Government position on every point.
MML lawyer David Kanyenda was not immediately available for comment before we went to press.
During the long trial, the court heard arguments from MML and Malawi Government which primarily focused on the role played by Supreme Court judge Rezine Mzikamanda in the delivery of the initial ruling that saved Macra from paying the company billions of taxpayer money.
The company alleged that the judge participated in the ruling when he was not part of the team of judges that heard the matter.