The Malawi Electoral Commission (MEC) has hired South African lawyers to help in the presidential election nullification appeal case, the poll body has confirmed.
MEC chairperson Jane Ansah—who is also a judge in the Malawi Supreme Court of Appeal—confirmed in an interview yesterday the hiring of the South African lawyers.
Ansah, however, said she was not aware of how much the international legal team will cost the taxpayer to defend the May 2019 presidential election results that the High Court of Malawi sitting as the Constitutional Court (ConCourt) nullified on February 3 2020.
But a document bearing the name of the South Africa-based law firm—Mboweni Maluleke Inc Attorneys—shows that the contract sum is $788 500 (about K600 million), half of which has to be paid in advance on or by March 13 2020.
Further authenticating the legal hires is a letter purported to be from Attorney General Kalekeni Kaphale to Umodzi Hotel Limited in Lilongwe dated March 11 2020 that shows a team of four lawyers— Dumisa Ntsebenza, SC, Elizabeth Makhanani Mere, Gideon Phalatse and Caphus Mboweni arrived in the country on Sunday, March 8, in preparation for the case.
Reads the letter in part: “The above named lawyers arrived in the country on Sunday, March 8 2020 to assist in the preparation of the appeal case on behalf of the Malawi Electoral Commission. They checked into Presidential Hotel.”
The letter—copied to MEC chairperson, Malawi’s Secretary to the Treasury and Phalatse—further asks Umodzi Park to allow the lawyers to pay for their lodgings later as government was working on “procurement protocols”.
“It had been their hope that before their departure tomorrow [Thursday], they would have been paid their deposit fee and would use the sums to settle hotel bills. Unfortunately, there have been delays in the finalisation of the procurement protocols for their legal services and it is only yesterday evening that my office received affirmative word from the office of the Director of Public Procurement that all the procurement protocols are complete and successful,” reads Kaphale’s letter further.
When contacted yesterday, Kaphale declined to comment, saying he will no longer speak on any matter related to the elections case.
However, the agreement document indicates that the South African lawyers are hired for the following tasks: merit determination, advice, preparation and prosecution of the appeal case.
It reads in part: “The agreement secures our services on a priority basis at an agreed fee of $788 500 for the duration of the litigation process in the above-mentioned appeal matter, until same is brought to finality and or as the parties may agree to the extension of the term.”
And Malawi Law Society (MLS) has applied to the Chief Justice for admission of practice for two of the four lawyers; Ntebeza, SC, and Makhanani Mere. The admission is for the presidential election case.
A letter signed by MLS honorary secretary Martha Kaukonde reads: “The Malawi Law Society has examined the application and it considers that the applicants have satisfied the statutory requirements and hence has no objections to the application. If it pleases you my Lord the Chief Justice you may grant the application.”
Meanwhile, Malawi Supreme Court of Appeal and High Court registrar Agnes Patemba confirmed receiving the application from MLS. She said in an interview yesterday that the Chief Justice is looking at the application.
Commenting on the matter, private practice lawyer John Gift Mwakhwawa said there is no reason for government to procure legal services from outside Malawi when the country has experienced and professional lawyers.
He said the legal profession in Malawi has matured and is competent enough to handle the sought services.
Said Mwakhwawa: “We have senior counsels in this country and indeed experienced lawyers who are very competent to handle this case because they understand the issues better. This is an insult to the legal profession and taxpayers who will have to pay such a huge sum.
“Secondly, this decision to hire foreign lawyers is made by a commission indicted by relevant authority and it is only there because the President is abdicating his duties. We have got to be worried with this.”
But Kaukonde in an interview said: “The law, which was duly passed by Malawi Parliament is in the following terms: The Chief Justice may, without formality, admit to practice as a legal practitioner for the purpose of a specific cause or matter, any person who, in the opinion of the Chief Justice meets set standards in the Legal Education and Legal Practitioners Act. MLS can only apply the law as it stands in the statute book.”
She further said courts in Malawi have previously admitted foreign lawyers for high profile cases.
Said Kaukonde: “Remember Stanbrook QC in the Chakuamba case and Anthony Berry QC in the Chilumpha case? That does not mean that we are short of lawyers in the country, not at all. But maybe MEC would be best placed to explain why it has preferred to go that route on this occasion.”
In its ruling on February 3 this year, a panel of five High Court judges, sitting as a ConCourt in Lilongwe, nullified the May 21 2019 presidential election, citing irregularities and the flouting of electoral procedures by MEC. It ordered that a fresh presidential election be conducted within 150 days of the ruling.
The ruling also gave powers to Parliament to come up with legislation that will govern the fresh elections, including coming up with new Electoral Reforms Bills.
However, President Mutharika and MEC, the first and second respondents respectively, are appealing the case in the Malawi Supreme Court.
Taxpayers are already saddled with the cost of MEC defending the presidential results in the ConCourt.