Findings of the Office of the Ombudsman investigation into the Malawi Electoral Commission (MEC) hiring of South African lawyers for the presidential election appeal case has opened a Pandora’s box. Releasing the report in Lilongwe yesterday titled Upholding Professionalism,
Ombudsman Martha Chizuma ordered former Attorney General Kalekeni Kaphale and former MEC chairperson Jane Ansah to pay back K3.1 million in public funds used to host the South African lawyers whose hiring the probe established was illegal.
Further, the Ombudsman also tasked the Judicial Service Commission to review High Court Judge Lloyd Muhara’s attainability as judge following his alleged involvement in the controversy. The investigation, she said, uncovered that Muhara, while serving as Chief Secretary to the Government, influenced the illegal appointment of board chairperson For Public Procurement and Disposal of Assets (PPDA).
“The former Chief Secretary knowingly, deliberately or out of sheer incompetence facilitated the illegal appointment of Mr M’meta as member of the PPDA board,” wrote the Ombudsman.
The appoi n ted boa r d chairperson, private practice lawyer Madalitso M’meta, the report further uncovered, ended up playing a critical role in enabling MEC to hire the South African lawyers in disregard of the laws. M’meta has also been ordered to reimburse all allowances and financial benefits he received from PPDA amounting to K8 million.
On the other hand, the PPDA director and his deputy were also censured and have since been recommended for review over their suitability for office.
The investigation established that the South African lawyers were not paid eventually, but faulted the way procurement systems and laws were flouted.
The report accuses Kaphale and Ansah, a retired Justice of Appeal of the Malawi Supreme Court of Appeal, of abusing their powers and breaching procurement laws in connection with the South African lawyers.
The Ombudsman ordered the duo to refund in equal amounts K3 155 248 that was expended on the SA lawyers through
accommodation, beverages and meals at The President’s Hotel in Lilongwe.
“This money should be paid back to MEC and proof of payment should be submitted to my office by 28th April 2021,” she said.
The report said that Kaphale, when questioned by the Ombudsman investigators on the expenditure, said the electoral body through its chairperson sought his assistance in identifying the replacement lawyers and he obliged, mostly because it was a mere case of assisting in acquiring the services of replacement
lawyers and had nothing to
do with his inputting into the merits of the case on appeal.
In the case of M’meta, the Ombudsman has given him up to May 28 2021 to reimburse K8.7 million he claimed in allowances between November 2018 and June 2020 as PPDA board chairperson.
Mmeta could not be reached for comment on several attempts yesterday.
On Muhara’s status, the Judicial Ser vice Commission has been given a deadline of May 28 2021 to communicate to the Ombudsman and the public.
The previously unknown role of M’meta received more attention from the Ombudsman as the investigation report shows that he had personal interest in the approval of the contract, as one of the lawyers representing former president Peter Mutharika in the same election case.
“The failure by the PPDA board chairperson to declare his conflict of interest at the PPDA meeting on the issue of procurement of the South African lawyers was serious breach of the law,” reads the report.
The investigation established that the PPDA completely depended on the professional judgement of Kaphale and MEC regarding suitability of the legal firm for the assignment and the reasonableness of the costs was an abdication of duty and contrary to the oversight role the institution is supposed to be playing.
In an e-mailed response to a questionnaire, Ansah yesterday said she could not
comment on the matter as she was yet to read the report.
“I have not seen the report, therefore, I cannot give any comment. Thanks,” she said.
Muhara could not be immediately reached for comment.
Justice of Appeal Rezine Mzikamanda, who attended the Ombudsman’s briefing on behalf of the Judicial Service Commission chairperson and Chief Justice Andrew Nyirenda, did not comment specifically on Muhara, but said the commission will study the recommendations.
In her reaction, Malawi Law Society (MLS) honorary secretary Martha Kaukonde, who was also in attendance, welcomed the report and noted that a majority of those found to have flouted the law were lawyers.
She said: “We advocate for ethical standards among lawyers and the report sets the tone for the work of the Law Society.
“Going forward, we should try to meet the expectations of the public and the masses. It’s disturbing to have lawyers at the forefront of breaking the law.”
In an interview yesterday, Kaphale also said he could not immediately indicate if he will comply with the order or challenge it.
“I received a copy of the report yesterday. For now, I have no comment to make. If I have to make any step, you will know,” he said.
Youth and Society representative Amos Newa, whose organisation lodged the complaint, welcomed the determination yesterday, saying the youth and governance organisation will study the report for further action.
The investigation focused on five issues, including whether procurement procedures were followed in the recruitment of the SA lawyers; whether the legal fees charged by the SA lawyers were reasonable; whether the SA lawyers were paid legal fees in accordance with the retainer agreement; whether the former AG acted improperly by assisting MEC to procure the lawyers when the Constitutional Court adjudged that his representation
of MEC in the election case amounted to abandonment of his constitutional role