MLS objects SA lawyers
Malawi Law Society (MLS) has objected to the admission of two South African lawyers to the local bar to represent the Malawi Electoral Commission (MEC) in the presidential election nullification appeal.
Among other grounds for the decision, MLS cited what it called a flawed procurement process of the duo’s services. MLS also argued that the lawyers would be a health risk to the public with coronavirus.
In an interview in Blantyre after hearing of the application for admission was adjourned to Tuesday, MLS vice-chairperson Patrick Mpaka said the Public Procurement and Disposal of Assets Authority failed to justify why MEC was allowed to use a single source procurement in the recruitment of the lawyers.
He also said MEC, the procuring entity, failed to provide proof of funding prior to hiring the expatriate lawyers; hence, did not comply with the Public Finance Management
Act, which demands that procuring entities should only spend on items listed in their budget as appropriated by Parliament.
Reads in part the MLS submission: “Section 23 of the [Public Finance Management] Act prohibits expenditure where there is no parliamentary appropriation, which is a reiteration of Section 173 of the Constitution, which also prohibits drawing money from the Consolidated Fund without parliamentary appropriation.”
MLS submi ts that the financial transaction involved in the hiring of the South African lawyers should be declared illegal.
Mpaka also said the lawyers’ body would ask the court to reject the application on the basis that the K600 million price tag for the foreign lawyers’ services is “exorbitant and unreasonable”.
He also said MLS is concerned that admitting the expatriate lawyers would delay the case, particularly if they were to be placed in 14- day quarantine in compliance with international health guidelines implemented to contain the spread of the novel coronavirus (Covid-19).
Said Mpaka: “The elections case has caused a lot of anxiety over the last 10 months. I think at this point we should avoid any delays. It is in the interest of the public that we conclude this
case. People need closure.”
The High Court of Malawi adjourned hearing of the application by the South African lawyers to represent MEC.
Hearing was scheduled to be heard yesterday, but did not proceed because the South African lawyers failed to travel to Malawi due to travel restrictions put in place to contain an outbreak of Covid-19.
The South African lawyers filed the application with the court after MEC expressed its intention to engage them in their appeal case filed against the judgement of the five-judge panel of the High Court of Malawi sitting as the Constitutional Court (ConCourt) that nullified the May 21 2019 presidential election and ordered a fresh poll.
MEC said it settled for the foreign lawyers after it emerged that the practising licence of private practice lawyer Tamando Chokotho, who represented the electoral body in the case in the ConCourt, had expired.
The ConCourt had also earlier determined that Attorney General Kalekeni Kaphale should no longer represent MEC because he is only supposed to provide an advisory role to the electoral body.
In a separate interview, High Court of Malawi and Malawi Supreme Court of Appeal registrar Agnes Patemba allayed concerns that the adjournment could delay the case, saying: “The appeal will proceed.”
On his part, MEC spokesperson Sangwani Mwafulirwa said he could not comment on a case that is still being heard in court to avoid being held in contempt.
Hearing of the appeal was set for April 15 2020
