It has emerged that Malawi Electoral Commission (MEC) paid its legal team in the May 21 2019 presidential election nullification case K400 million for representation in both the High Court and Malawi Supreme Court of Appeal.
Information The Nation has seen indicates that the electoral body paid about K250 million for legal representation in the High Court of Malawi sitting as the Constitutional Court and about K150 million in the Malawi Supreme Court of Appeal.
But the records show that neither then Attorney General Kalekeni Kaphale nor the South African lawyers the electoral body engaged for the appeal in the Malawi Supreme Court of Appeal got paid.
In a letter dated August 26 2020 addressed to Danwood Chirwa—a Malawian professor of law at the University of Cape Town—who asked the electoral body to furnish him with details of costs, MEC director of legal services David Matumika Banda said K247.1 million was paid through two invoices for the Constitutional Court case and K155.7 million for the Malawi Supreme Court of Appeal proceedings.
The letter said MEC engaged one legal firm, Churchill & Norris and that Treasury funded the payments through special requests.
Reads the letter: “The commission did not pay any deposits to the South African lawyers and has not paid any sum of money to the lawyers in respect of their engagement to present the commission in the appeal. Counsel Dumisa Ntsebenza SC was engaged to be part of the legal team as lead counsel.
“He was specifically required to come up with positions to be taken by the commission. He was required to review the entire court record, prepare written submissions for use by the legal team in court. On the date set for hearing, he was expected to argue the appeal on behalf of the commission. His application to be admitted to practise in Malawi for this specific case was not granted by the Honourable Chief Justice of Malawi.
“Eventually, due to the Covid-19 preventive measures which were in place in both the Republic of South Africa and Malawi, Counsel Ntsebenza and his legal team failed to travel to Malawi.”
Through a local legal firm Golden & Law, Chirwa sought details of payments MEC made in legal costs.
The revelation comes against the background of MEC being saddled with a whopping K7 billion in legal fees for the petitioners—President Lazarus Chakwera and Vice-president Saulos Chilima—in the historic case whose judgement overturned the outcome of the May 21 2019 presidential election over alleged irregularities and ordered a fresh election held on June 23 2020.
In the case, Chilima was the first petitioner as candidate of UTM Party and Chakwera was the second petitioner as Malawi Congress Party torch bearer. The duo prayed for the nullification and an order for a fresh election based on irregularities and illegalities in the electoral process, especially in the results management system.
Yesterday, MEC chairperson Chifundo Kachale, a judge of the High Court of Malawi, acknowledged that the commission wrote Chirwa as per his request, but referred this reporter to MEC director of media and public relations Sangwani Mwafulirwa. However, when contacted, the MEC spokesperson referred The Nation to Banda.
Said Kachale: “But you already have the information that we have provided. Send a formal request through Mr Sangwani Mwafulirwa.”
In a separate interview, Chirwa said he took the action to ensure transparency and accountability on the part of MEC in light of the debate on what the lawyers for Chilima and Chakwera were awarded in legal fees.
“There has been wide speculation about what MEC paid its lawyers compared to what Tonse [Chilima and Chakwera] lawyers are claiming. This information needed to be put out in the open so that there is full accountability by all the parties involved, whether it’s MEC or the lawyers involved.”
On the South African lawyers who had given MEC a K600 million quotation for the appeal, Chirwa observed that the letter from MEC only said they were engaged, but did not confirm they undertook any work.
Initially, lawyers for the petitioners submitted a K9 billion legal bill, but the registrar of the High Court of Malawi and Malawi Supreme Court of Appeal trimmed it to K7 billion.