The Malawi Government, through Attorney General Kalekeni Kaphale, on Friday asked the Comesa Court sitting in Lusaka, Zambia to drop a case in which Malawi Mobile Limited (MML)—a private company that sought to establish mobile phone business in the country—sued Malawi Government and Malawi Communications Regulatory Authority (Macra) for illegal termination of a contract.
Kaphale cites the court’s lack of jurisdiction on the matter as the ground for the preliminary objection to the court’s handling of the matter and the court is next week due to rule on whether it will heed the call.
Malawi Government was dragged by MML to the Comesa Court as part of a protracted legal wrangle following the Malawi Supreme Court’s ruling that favoured Macra.
MML contends the Supreme Court erred in its judgment and was also unlawfully constituted through the participation in the ruling of the matter of a judge who was not involved in the case’s hearing.
However, Kaphale challenges that narrative and insists that the highest court in Malawi interpreted the law correctly. He even questions the appeal process, including the inclusion of Macra as a party.
In an interview from Lusaka on Friday, Ministry of Justice spokesperson Apoche Itimu, who is among the team of State lawyers on the matter led by Kaphale, said the State raised several preliminary objections on the hearing of the case and now hopes the case rules in its favour on the matter of jurisdiction.
“We raised a preliminary objection that that court has no jurisdiction and Macra to be removed as party. MML also raised an objection that Supreme Court was improperly constituted. Judgment will be out next Friday,” said Itimu.
Efforts to speak to MML lawyer David Kanyenda proved futile till we went to press.
The role played by Justice Rezine Mzikamanda in the delivery of a Supreme Court ruling that saved Macra from paying MML billions of Malawi taxpayers’ money has become the centre stage of the protracted legal tussle.
According to court documents earlier seen by Nation on Sunday, the legal counsel for MML alleges in submission to the court that Mzikamanda participated in the ruling while he was not part of the ruling that heard the matter.
At the Malawi Supreme Court, the matter was heard by a panel comprising the current Chief Justice Andrew Nyirenda, Justice Edward Twea and Justice Richard Chinangwa.
“When the Supreme Court sat to deliver or pronounce the judgment, it did so as part of an exercise to discharge its constitutional mandate of determining the matter and therefore it was not lawfully open to the Supreme Court to dilute its composition and allow the quorum to dwindle to two Justices of Appeal or permit the quorum to increase to four Justices of Appeal.
“The proceedings for judgment delivery on March 10 2015 cannot and should not be wished away as inconsequential in determining as the first respondent would like this court to believe,” reads part of the documents filed by lawyers for MML.
The MML contract was terminated by Macra over contractual disagreements leading to a protracted legal battle, which at some point saw the High Court awarding a K55 billion ($93,985,000) compensation to the company before the Supreme Court reversed the ruling. n