Taxpayers stand to bankroll Malawi Electoral Commission (MEC) in excess of K300 million to pay lawyers representing petitioners in the presidential election nullification petition.
Currently, lawyers representing UTM Party president Saulos Chilima (first petitioner) and Malawi Congress Party (MCP) leader Lazarus Chakwera (second petitioner) are tabulating the legal costs following the Constitutional Court order.
The K300 million is a modest calculation The Nation has worked out based on standard legal fees. However, a source indicated the claim could be in excess of K1 billion as besides normal rates, lawyers also come up with hourly rates taking into account the complexity, novelty, importance and questions of law raised.
In an interview, Titus Mvalo, one of the lawyers representing Chakwera, yesterday said the lawyers, who charge per hour, started billing their clients on August 8 2019, the day hearing of the case started to the day of judgement, February 3 2020.
He said the case lasted about 180 days and clocked approximately 4 320 hours in the process.
While stating that it was difficult to estimate how much MEC will pay, Mvalo said on average an hourly rate for a senior counsel (SC) is K60 000, that for a lawyer with not less than 10 years in practice is K40 000 and the charge for lawyers with less than 10 years at the bar stands at K30 000 per hour.
He said: “That amount [the hourly cost]
should be multiplied with hours clocked every single day since the case started to the day the judgement was delivered. Hours clocked are different from one individual lawyer to another.”
Mvalo said Chakwera’s legal team was still doing the calculations on the hours individual lawyers clocked. He said the hours would be added to come up with the team’s legal costs.
Besides Mvalo, Chakwera’s legal team had Mordecai Msisha SC, Pempho Likongwe, Isaac Msongea, Innocensia Nkhoma, Chrispin Ndalama and Charles Mhone.
Chilima, on the other hand, was represented by Chikosa Silungwe, George Mtchuka Mwale, Bright Theu, Marshall Chilenga and Khumbo Soko.
Based on the average hourly rate for an SC, one lis ikely to cost K10.8 million in legal costs at an average of 10 hours while a lawyer with more than 10 years practice getting about K7.2 million and one with less than 10 years practice making K5.4 million.
Apart from paying petitioners’ lawyers, MEC is also expected to pay Tamando Chokotho and other private lawyers the commission hired to assist Attorney General (AG) Kalekeni Kaphale.
In an interview, Silungwe said his office has invoiced MEC lawyers, Churchill and Norris whose partner is Chokotho, but could not disclose the amount.
He said: “We would not want to be seen to be negotiating the costs in the newspaper, once negotiations have been concluded, we will update on the progress.”
Silungwe said his office sent the letter of legal costs to Churchill and Norris, not the AG’s office, in compliance with the Constitutional Court decision that admonished the AG for his involvement in the case.
The AG was the lead lawyer for the second respondent, MEC in the case Chilima and Chakwera sought nullification of presidential election over irregularities, especially in the results management system.
But Silungwe had challenged in court that the AG was partisan.
In its ruling, the court opined based on Section 20 of the Electoral Commission Act (ECA) that the AG may end up taking a partisan role in constitutional proceedings, even where his office is not a party to such proceedings, the same is inconsistent with Section 98 of the Constitution.
Section 20 of ECA says the commission may instruct the AG or any legal practitioner to provide legal representation to the commission in any court proceedings, including proceedings concerning appeals against its decisions on complaints about any aspect of the electoral process or to provide general legal advice to the commission while Section 98 of the Constitution says there shall be the office of Attorney General, who shall be the principal legal adviser to the government.
Constitutional duties of the AG, apart from being the head of the AG’s chambers by virtue of Section 98 (1) of the Constitution, include the holder being the principal legal adviser to the government.
The court observed that MEC, as a body corporate under the ECA, was at liberty to engage its own legal practitioners other than the AG.
But Kaphale reacted yesterday: “They could have thrown me out when the case started. I have reached the point [in the judgement] where they talked about that… I am thinking it was a by the way effect.”
But Garton Kamchedzera, a professor of law at Chancellor College—a constituent college of the University of Malawi, said the court underlined that the AG adopted a partisan role in this case and opined that the office needs to change its approach.
He said: “When a court of law says something like this in jurisdictions where compliance with the law and ethics matter, the AG should have resigned by now.
“The AG should have advised MEC to account and not try to frustrate and defend the case in the first place. After the judgement, in my view, the AG should be advising MEC not to appeal against the decision and advise various branches and organs of government on how to implement the judgement in line with appropriate laws and the context of our Constitution.”
Kaphale also disputed Silungwe’s assertions that he was not dealing with the AG’s office following the court’s admonishing of the office, saying his office has in possession a letter from Mtchuka Mwale of Nicholls and Brookes on costs.
On the call for him to resign, the AG said: “It is interesting. I cannot comment further since I have not heard Dr Kamchedzera saying it.” The court has ordered the registrar of the High Court of Malawi and Malawi Supreme Court of Appeal to assess the costs if not agreed by the parties within 14 days from February 3 2020.