It never rains but pours for Malawi Election Commission (MEC) which yesterday suffered a fresh blow after Chief Justice Andrew Nyirenda barred two South African lawyers from representing the electoral body in the presidential election nullification appeal.
The decision came two days before a seven-judge panel of the Malawi Supreme Court of Appeal is set to hear MEC’s appeal tomorrow against the February 3 2020 judgement of the five-judge panel of the High Court of Malawi sitting as the Constitutional Court.
Ruling on the application by the two lawyers—Dumisa Buhle Ntsebeza and Elizabeth Makhabani Baloyi-Mere of Mboweni Maluleke Inc Attorneys—to practise in Malawi as MEC’s lead lawyers, the Chief Justice said it is against the law for lawyers seeking to represent the electoral body to represent MEC remotely while in another country.
The lawyers were supposed to be present during the hearing of the application, but the court learnt that they did not travel due to travel restrictions relating to the coronavirus (Covid-19) pandemic in both Malawi and South Africa.
The court learnt that the duo presented itself at the Malawi High Commission in Pretoria where they wanted to participate in the case through video teleconferencing.
The development means that private practice lawyer Tamando Chokotho, who alongside Attorney General Kalekeni Kaphale unsuccessfully represented the electoral body in the Constitutional Court, will lead MEC’s legal team in arguing the appeal case tomorrow.
The Constitutional Court barred the Attorney General from representing the electoral body in the matter, saying his role is supposed to be advisory and not litigation on behalf of MEC.
Said Chokotho: “One of the requirements in the Legal Practitioners Act is that they [lawyers] must be physically present. We were just making an application before going into anything to know if the Chief Justice was going to allow admission to proceed while the lawyers are in South Africa at the Malawi High Commission office.”
He said he will gear up for the task tomorrow, saying: “I have been into the matter since its inception and I am ready to represent MEC in the case on Wednesday.”
Malawi Law Society (MLS) vice-chairperson Patrick Mpaka, whose body of attorneys earlier objected to the admission of foreign lawyers on grounds that the country has equally good lawyers and that their procurement was flawed, among other grounds, said the court was dealing with issues on whether the Malawi High Commission is a territory of Malawi to warrant lawyers to follow proceedings from there.
He said: “The Chief Justice has declined to entertain the application for admission to foreign lawyers. What it means is that these lawyers are not going to come into the country to represent the electoral body on the matter.
“We came to the conclusion that the embassy, while it may enjoy immunity, is not a territory as defined in Section 3 of the Constitution. Both the court and lawyers agreed that the definition of territory under our law does not include embassies.”
In an interview after the court proceedings yesterday, MEC spokesperson Sangwani Mwafulirwa was not clear on whether the electoral body paid the South African lawyers the upfront deposit payment of legal fees at 50 percent of the K600 million fee as stipulated in their agreement.
The lawyers stated in the agreement that 50 percent of the amount be paid by March 13 2020 and the balance on finalisation of the matter. They also said in case of a cancellation of the contract they would require 20 days notice and that they would levy an unspecified cancellation fee.
But Mwafulirwa briefly said: “I am not aware of any cost and payment made by the MEC in advance to the lawyers.”
MEC chairperson Jane Ansah, a judge of the Malawi Supreme Court of Appeal, justified the cost and the decision to engage South African lawyers, saying there were no local lawyers available by the date the appeal case would commence.
In the case, the country’s estranged Vice-President Saulos Chilima of UTM Party and Malawi Congress Party president Lazarus Chakwera are first and second petitioners. The Constitutional Court ruled in their favour for nullification of the May 21 2019 presidential election over alleged irregularities, especially in the results management system.
The court also ordered a fresh election within 150 days.
President Peter Mutharika of the Democratic Progressive Party is the first respondent by virtue of being the declared winner and MEC is the second respondent.