The governing Democratic Progressive Party (DPP) and government agencies have taken to the Malawi Supreme Court of Appeal the ‘Blue Night’ case where civil society organisations (CSOs) are demanding a refund of donations from the agencies.
The reference follows a March 13 2018 ruling by Zomba-based High Court judge Zione Ntaba that the CSOs had sufficient interest (locus standi) in the matter and that it was within their right to take the case to court.
The judge also directed that the matter be taken for mediation to be conducted by her fellow judge Redson Kapindu, also based in Zomba, within two months.
Ironically, the appeal by DPP and the four agencies—Lilongwe Water Board (LWB), Lilongwe City Council (LCC), Blantyre City Council and Mzuzu City Council (MCC) which had earlier signed a Consent Order withdrawing its K3.5 million pledge to the DPP—was made on May 21 2018, the same day Ntaba had set the parties to commence mediation.
On May 17 2018, lawyer for BCC, Bruno Kalemba, wrote the registrar of the High Court in Zomba asking for postponement of the negotiations on the basis that they were busy, but ended up making an appeal to the Malawi Supreme Court of Appeal the same day.
Now, the DPP and parastatals have faulted Ntaba, arguing that she erred in law by failing to properly apply the test for locus standi as established by the Supreme Court of Appeal in a previous case.
They have also faulted the judge for admitting and using opinions contained in the sworn statements of the CSOs. They have since asked the Supreme Court of Appeal for an Order setting aside the judgement of the High Court.
Lawyer representing the CSOs, Wesley Mwafulirwa, confirmed receiving notice of the appeal.
One of the leaders of the CSOs, Gift Trapence, who heads Centre for the Development of People (Cedep), argued that technically, the mediation will proceed because the appeal notice does not stop the process.
Besides Cedep, the other CSOs are Centre for Human Rights and Rehabilitation (CHRR), Youth and Society (YAS), Human Rights Consultative Committee (HRCC) and Livingstonia Synod’s Church and Society Programme.
During a fundraising dinner and dance branded Blue Night at Kamuzu Palace in Lilongwe on July 29 2017 where President Peter Mutharika was the guest of honour, DPP allegedly received about K13.5 million from public institutions, a gesture the CSOs argued amounted to misuse and abuse of public resources.
Under Section 178 of the Constitution and Section 23 of the Public Finance Management Act, no single tambala of public funds is supposed to be expended unless such expenditure is authorised by an Appropriation Act or is a statutory expenditure.