High costs of Elections case

 Law experts have hinted that legal costs of the ongoing elections case may exceed K1 billion if the number of legal firms and lawyers engaged remains bloated for the entire four-month period.

Two weeks ago, Judiciary spokesperson Agnes Patemba told Weekend Nation that the State is expected to spend K150 million of taxpayers

 money in the case in which opposition parties—UTM and Malawi Congress Party (MCP) are disputing the victory of Peter Mutharika of the Democratic Progressive Party (DPP).

Patemba said this amount would, among others, cater for transport, lodging, and subsistence allowances for the five-judge panel comprising Healey Potani, Mike Tembo, Dingiswayo Madise, Ivy Kamanga and Redson Kapindu and their support staff.

However, the K150 million maybe a tip of the iceberg as it only caters for administrative costs of the case and excludes costs of private practice lawyers engaged by various parties in the case.

According to two legal experts we have talked to, the court may, at the end of the case, decide that a party that loses the case should pay a significant portion of the winner’s costs and remain responsible for their own (party-to-party costs) or each party may pay fees charged by their lawyers calculated on an hourly rate (solicitor-own-client cost) for the entire period.

They said an average cost of the case for private practice lawyers may be between K9 million and K18 million per day while Senior Counsels (SCs) could be earning K2.4 million for a day’s 8-hour

court appearance.

A number of law experts have validated the cost estimates, saying such a complex and highly represented case does not come cheap.

Private practice lawyer Justin Dzonzi said in a telephone interview on Wednesday that legal costs would exceed K1 billion considering the number of legal practitioners and law firms engaged.

“Largely, it wouldn’t be strange for the cost of such a high-profile case to go beyond K1 billion. The teams involved, the calibre of lawyers involved and the fact that power to govern is at stake, makes the case a high-cost endeavour,” said Dzonzi.

Twenty-seven lawyers are assigned to the highly-contested elections case.

There are five State lawyers representing the Malawi Electoral Commission (MEC), seven representing President Peter Mutharika; seven representing MCP leader Lazarus Chakwera; five for UTM leader Saulos Chilima; two representing the Malawi Law Society and one for the Women Lawyers Association.

The First Schedule of the Legal Education and Legal Practitioners Act under the Scales and Minimum Charges (Amendment) Rules outlines lawyers’ fees, placing the highes

 per hour. charge for SC at over K60 000

Under the Act, however, lawyers and their clients are given latitude to agree on a higher fee as may be deemed “fair and reasonable”, depending on the complexity, importance, expertise, experience and direct costs incurred.

Former Minister of Justice and Attorney General Ralph Kasambara, in an interview last Wednesday, warned that the costs might be much higher, depending on the method of cost-estimation employed.

“Generally, charges of legal fees will largely depend on the agreement between the client and the involved lawyer. An elections case is not one you expect pro bono services. I am aware of lawyers who can charge up to K300 000 per hour for such a high-profile case, especially if the case is associated with high risks,” he said.

Kasambara said when handling such a demanding case, lawyers risk losing some clients due to their busy schedules; hence, a justification to ask for a premium price.

Going at the premium rate of K300 000 per hour as suggested by Kasambara, a full day in court would see a senior lawyer carting home K2.4 million and about K26.4 million after 11 days in the chambers. This excludes billing for time and extra services rendered out-of-court.

Computing costs based on the minimum regulation rate, a busy day at the Constitutional Court may cost as much as K9 120 000 if each of the 19 private practice lawyers representing Chilima, Chakwera and Mutharika are expected to work for eight hours at an hourly rate of a minimum of K60 000.

In 11 days, the collective cost of court appearance (excluding out-of-court services) for all the parties would come to about K100 320 000.

However, legal experts we have interviewed have unanimously agreed that a more realistic assumption is at least double the minimum hourly rate at K120 000, translating to about K200 640 000 for 11 days.

According to premium market rates given by experts in the legal field, a SC may earn up to K26 400 000 in just 11 days.

Chancellor College-based law professor Garton Kamchedzera has described the high costs associated with the case as “imprudent”.

“I hold that these costs are imprudent because the case is really about MEC being accountable. It has failed to do so and has, instead, chosen to fight those with questions,” he said.

“The cost can even increase if parties to the case employ delaying tactics to drag and frustrate the process with unnecessary applications, appeals and time-wasting cross-examination and adjournments,” warned Kamchedzera.

Dzonzi expressed worry that while current projections put the taxpayers’ probable expenditure on the case at K150 million, a lot more could be at stake.

Interviewed legal experts say MEC is placed under immense pressure to justify use of taxpayers’ money to cater for the exorbitant legal fees, especially if it loses the case.

President Mutharika may share the legal costs with the electoral body as an individual.

On the other hand, the UTM and MCP may have to split the costs of State and Mutharika’s legal costs should they be declared losers at the end of the court battle.

Efforts to draw lawyers representing parties in the elections case to comment on costs and charges aspect were unsuccessful.