‘New AG can’t influence legal fees case’

The Judiciary and Malawi Law Society have dismissed assertions that the appointment of one of Vice-President Saulos Chilima’s lead lawyers in the presidential elections case, Chikosa Silungwe, as Attorney General (AG) will influence the K9 billion legal fees claim case, to which he is an interested party.

In April this year, lawyers for both the first petitioner in the case, Chilima, who is also UTM Party leader, and the second petitioner, now President, Lazarus Chakwera, filed to the courts a claim of about K9 billion for the presidential election case in which the Constitutional Court (ConCourt) nullified the May 2019 presidential election results.

The lawyers are also claiming about K348 million from Malawi Electoral Commission (MEC) and Mutharika as legal fees for a case in which immediate past president Peter Mutharika and MEC asked the Malawi Supreme Court of Appeal in June 2019 to have the presidential election case thrown out of the ConCourt.

In an interview yesterday, High Court and Malawi Supreme Court of Appeal registrar Agnes Patemba said an arbitration date for the claim is yet to be set due to pressure of work and coronavirus. 

In a written response, the Law Society honorary secretary Martha Kaukonde feared a possibility of conflict of interest if the bill of costs is settled outside the court, but expressed optimism that under court’s arbitration there is no room for influence.

She said: “The normal practice is that, the bill would go for taxation before court and an order would follow. We are optimistic that the said bill will go to court and be taxed in accordance with civil procedure rules.

“A decision of the court will remove the conflict if any considering also that it is made against MEC and the AG is not representing MEC.”

Patemba also dismissed any fears of possible compromise, saying the matter will be handled in court in line with set rules.

She also ruled out any chances for out of court settlement saying: “We are bound by the direction of the court that the matter be handled by the court; hence, we cannot depart from this.”

Private-practice lawyer John-Gift Mwakhwawa, who said he personally knows Silungwe both in school and practice, said even if the matter was to be dealt with outside the court Silungwe is a legal practitioner who cannot flout procedures “for he has high integrity”.

Silungwe, who was appointed AG on Monday this week replacing Kalekeni Kaphale, declined to comment on the matter as he is yet to fully assume office.

Kaphale was chided by the courts for being partisan in the presidential elections case in which he represented MEC as second respondent and worked with the legal team that represented Peter Mutharika as first respondent in the case.

Chakwera had eight lawyers while Chilima had four, and the 12 are claiming about K9 billion in legal fees.

Orders of the Civil Procedure Rules empower them  to  make such a claim, as it states in part: “A bill of costs shall be filed with the court for assessment within 3 months from the date of the costs order and the bill shall be filed at the conclusion of the whole proceeding unless the court orders otherwise.”

Meanwhile, Senior Counsel Modecai Msisha, who was Chakwera’s lead lawyer in the presidential election dispute, has declined his appointment as Minister of Justice and Constitutional Affairs.

Newly appointed Chief Secretary to Government Zangazanga Chikhosi could not be reached for comment yesterday despite several attempts while his deputy Janet Banda, another new appointee, asked for more time to get details on the matter.

But one of Chakwera’s top aides and director of communications for the Tonse Alliance, Sean Kampondeni yesterday said the President had consulted Msisha on the role, but respects his decision to turn it down.

He said: “He is within his right to decline. The President consulted the senior counsel and they continue to discuss what other roles he can perform in the government.  The President did indicate that the rest of the appointment to Cabinet will be made before July 6 celebrations so the replacement of the minister will come within the same period.”

Msisha could not be reached for comment yesterday.

He is a celebrated figure who helped formulate the Republic Constitution in 1994 and helped Chakwera and Chilima win arguably the most famous constitutional case in modern Malawi.