MEC billed K9bn in legal fees

• Bill filed on April 30
• Parties to meet, assess the fees

Petitioners in the annulled presidential election case have billed Malawi Electoral Commission (MEC) close to K9 billion as legal fees, an expense governance experts say taxpayers are paying for MEC’s incompetence.

In an interview on Wednesday ,Titus Mvalo, one of the lawyers representing second petitioner Lazarus Chakwera in the presidential election case, said his team has so far billed MEC K6.2 billion.

He said they filed the legal fees with the court on April 30 this year, but court is yet to set a date to arbitrate the matter.

Mvalo said: “The law gives three months for the calculations to be done and submitted and we have done that. Once the court sets a date, we shall sit down together with the other party and the registrar [of the High Court and Supreme Court of Appeal] to go item by item and justify our costing.”

Another lawyer, who asked for anonymity, but represented the first petitioner Saulos Chilima, also said on Wednesday his team has asked MEC to pay them K2.7 billion.

MEC will also have to pay for private lawyers that worked with Attorney General (AG) Kalekeni Kaphale on the case at the Constitutional Court (ConCourt). And after losing the appeal case in the Supreme Court, MEC has been ordered to pay costs.

Lawyers for Chakwera and Chilima indicated they were working on costs for the appeal case.

Justifying the higher fees for the second petitioner, Mvalo said this is because Chakwera’s legal team had eight lawyers in ConCourt while Chilima’s had four lawyers.

The costs cover, among other things, the period the lawyers spent preparing for the case, court attendance, care and conduct, instruction fee, disbursement and taxation costs. The are charges are per hour. A minimum hourly rate for a senior counsel is K60 000, for a lawyer with not less than 10 years it is K40 000, and for lawyers with less than 10 years at the bar, it is K30 000.

In separate interviews on Thursday, two governance analysts observed that all costs incurred beyond the judgement of the ConCourt are not a fair or appropriate burden on the taxpayer.

Governance analyst Henry Chingaipe said: “Effectively, these costs will amount to paying for the incompetence of MEC as the Supreme Court clearly said that the appeal was without merit and could have been dismissed at preliminary stages and that MEC did not have to appeal.”

While observing that access to justice is expensive, he said the country needs a conversation on how justice can be made accessible at a minimum cost.

However, Chingaipe said the ConCourt hearing was worthwhile as it settled many questions and potentially increased the quality of elections and governance in future, adding that such gains would have been lost without the case.

Another governance analyst Makhumbo Munthali, suggested that it is high time public officers who demonstrate incompetence in court cases should be personally liable for the legal costs.

He said such a punishment would act as a deterrent against possible abuse of taxpayers’ money by partisan officers.

“The level of impunity that MEC demonstrated is partly due to the fact that they are not personally liable for the cost of the election case. It’s high time, as a country, we had a sober debate on the matter,” Munthali said.

In its ruling on May 8, the Supreme Court upheld the ConCourt ruling on February 3 to nullify last year’s presidential vote.

The court questioned the logic by MEC to appeal the case on behalf of the AG, saying as a referee, the electoral body should not have taken a side with one of the candidates.

Lawyers representing MCP president and UTM Party leader are also claiming almost K348 million from MEC and Mutharika as legal fees for an earlier appeal case in which Mutharika and MEC asked the Supreme Court of Appeal in June 2019 to have the presidential elections case thrown out of the ConCourt.

Mutharika and the electoral body challenged the claimed amounts.

Meanwhile, an assessment to determine how much the two respondents should pay is in process, according to Mvalo.

MEC also has to pay South African legal firm, Mboweni Maluleke Inc Attorneys, who were hired to represent the electoral body in the appeal case.