Debate has ensued on the justification for two legal teams that represented President Lazarus Chakwera and Vice-President Saulos Chilima in the May 21 2019 presidential election nullification petition to get a collective K7 billion fees.
Prominent legal scholars and Malawi Law Society (MLS) have given varying positions on the legal bill to be footed by Malawi Electoral Commission (MEC) as assessed by Agnes Patemba, registrar of the High Court of Malawi and Malawi Supreme Court of Appeal, on Monday this week.
While MLS and one legal scholar Danwood Chirwa, a Malawian professor of law who teaches at University of Cape Town in South Africa, have faulted the award, some of the lawyers in the beneficiary legal team have justified the bill as “earned”.
In a written response to an enquiry, MLS president Burton Mhango noted that Patemba, in her assessment of the costs, did not provide full particulars of some key considerations and how she arrived at the figure.
He said: “She has also not stated in the ruling that she has applied her mind to those aspects on any of the cost items in the bill that was before the court.”
Mhango said although MLS was aware of the discretion given to the registrar in terms of accountability and transparency in such a matter of public interest, the expectation was for the registrar to do much better by providing full particulars of the cost items and figures to each item.
Under Order 25 of the Courts (High Court)(Civil Procedure) Rules of 2017, the registrar has the power to assess the costs while not allowing costs unreasonably incurred or those that are unreasonable in amount.
On his part, Chirwa said the electoral body, which was the second respondent in the Constitutional Court case which saw the May 21 2019 presidential election results overturned, should challenge the decision on costs in the Malawi Supreme Court of Appeal.
He said: “That is the only way by which questions about conflict of interest, collusion and opportunism that hover ominously around the issue can be put to rest.”
But Professor Garton Kamchedzera, who teaches law at Chancellor College—a constituent college of the University of Malawi, said MEC was to blame for handling the election with impunity and total disregard for legality and accountability to Malawians. He also said MEC approached the election case with mediocrity.
He said: “The Malawi Supreme Court of Appeal was minded to order the commissioners to pay costs personally for their lack of prudence in handling public resources and impunity and mediocrity in needlessly defending the case and wanting to frustrate the judgement at the Constitutional Court.”
Kamchedzera also said there was need for the country to develop a law that makes public officers who combine duty with personal interests and manage resources without reasonable prudence to pay for economic and other damages they cause against resources and potential of the nation.
In his reaction, one of the lawyers who represented Chakwera said the legal bill “was earned through hard work” for the job done before the court-sanctioned June 23 fresh presidential election.
Said the lawyer: “That is money that I and my colleagues earned through hard work for a job we did before the election.”
On his part, Khumbo Bonzoe Soko, a member of the Chilima legal arsenal, said: “I think it is a fair order given the complexity of the case and the time that was spent on it.”
In her assessment, Patemba ordered that Chilima’s legal team be paid K2.3 billion costs for the Constitutional Court case and K877.7 million for the appeal.
On the other hand, Chakwera’s lawyers will smile all the way to the bank with a K3.08 billion cheque for the Constitutional Court proceedings and K726.4 million for the appeal filed by former president Peter Mutharika and MEC.
The court has ordered MEC to meet the costs within 45 days.
The award comes after the two sets of legal teams collectively filed a K9 billion legal fees claim in April this year.
Initially, Chilima’s lawyers claimed K2.5 billion while lawyers for Chakwera sought K6.2 billion.
Besides Soko, Chilima’s legal team comprised current Attorney General Chikosa Silungwe as lead counsel, Marshall Chilenga, Bright Theu and George Mtchuka Mwale.
Chakwera’s team of lawyers was led by senior counsel Mordecai Msisha and had Titus Mvalo (now Minister of Justice), Pempho Likongwe, Innocencia Nkhoma, Chrispin Ndalama, Isaac Msongeya and Charles Mhone.
The court moved in to assess the costs claimed by the legal teams for the two petitioners who successfully moved a five-judge panel of the High Court sitting as the Constitutional Court to overturn the outcome of the presidential election and order a fresh election within 150 days from February 3 2020.
During the assessment, the court said the costs were for five lawyers who were present during the proceedings on the basis that the court felt that the rest of the legal practitioners were a luxury and an unnecessary burden on the paying part.
Chakwera, who teamed up with Chilima as his running mate, won the court-sanctioned fresh presidential election on June 23 after amassing 58 percent of the vote.