- Petitioners take matter to High Court registrar
Lawyers for petitioners in the election nullification case are going back to court next week for assessment of their legal bills after they and Malawi Electoral Commission (MEC) failed to agree on a payable amount within the 14 days the court stipulated.
In its February 3 ruling, the High Court sitting as a Constitutional Court ordered MEC, which was the second respondent in the case, and the 12 lawyers who represented UTM Party president Saulos Chilima and Malawi Congress Party (MCP) leader Lazarus Chakwera, to agree on the payable amount within 14 days after the ruling.
The court further ordered that should the parties fail to reach an agreement on the payable amount within the prescribed days the matter will have to be determined by the Registrar of Supreme Court of Appeal and High Court of Malawi.
In an interview on Wednesday, Titus Mvalo, one of the senior lawyers for Chakwera disclosed that MEC did not respond to what they demanded as legal costs.
“Considering that the period [14 days] has elapsed, we are now working on presenting our legal bills for an assessment process by the Registrar of the Supreme Court of Appeal and High Court of Malawi,” he said, adding that they presented their demand letter three weeks ago.
Mvalo said upon receiving the bills, the registrar will fix a date for a meeting with both parties to scrutinise the litigation costs item by item.
“The registrar’s role is to assess the reasonability of the amount we claimed by evaluating each item, knocking off what she may think is excess and agreeing to what she thinks is reasonable and come up with a payable amount,” he explained.
On his part, Chilima’s lead lawyer, Chikosa Silungwe said since they have failed to agree with the commission on their demand, they were finalising the paperwork for the registrar to determine.
“We submitted the demand letter on February 3. And we will be filing our papers any time next week,” he said.
Apart from Silungwe, other members of Chilima’s legal team were George Mtchuka Mwale, Bright Theu, Marshall Chilenga and Khumbo Soko while Chakwera was represented by Modecai Msisha (senior counsel—SC), Mvalo, Pempho Likongwe, Isaac Msongea, Innocensia Nkhoma, Chrispin Ndalama and Charles Mhone.
The two legal teams presented separate legal costs to MEC which was represented in the case by Attorney General Kalekeni Kaphale and Tamando Chokotho. Kaphale, who was admonished by the court for playing a partisan role in a constitutional case, was the lead lawyer for the second respondent.
Both teams kept a tight lid on the amount of their claims but Silungwe said: “We are not claiming small change, but it will be too early to make that public now.”
On his part, Chokotho said he did not have instructions from MEC to talk to the media on what the petitioners are claiming in legal costs.
Both MEC chief elections officer Sam Alfandika and the body’s spokesperson Sangwani Mwafulirwa also refused to disclose the legal costs the petitioners are claiming.
“The communication [from petitioners’ lawyers] went to MEC’s lawyers directly, so get in touch with them,” he said, before asking for more time to get the information.
While the figures remain guarded, calculations show that taxpayers stand to bankroll the legal fees on behalf of MEC in excess of K300 million for its 12 lawyers.
The K300 million is a modest calculation our sister paper The Nation worked out four weeks ago based on average hourly legal fees for a senior counsel (SC), a lawyer with not less than 10 years in practice and lawyers with less than 10 years at the bar. There were three SCs in the legal teams—Msisha, Kaphale and Samuel Tembenu who represented Mutharika.
Some sources close to the case have indicated the claim could even be in excess of K1 billion because besides normal rates, the lawyers also come up with other hourly rates taking into account the complexity, novelty, importance and questions of law raised.
In an earlier interview, Mvalo said the lawyers, who charge per hour, started billing their clients on August 8 2019, the day hearing of the case started to the day of judgement, February 3 2020 and the case lasted about 180 days and clocked approximately 4 320 hours in the process.
On average, an hourly rate for a senior counsel is K60 000, for a lawyer with not less than 10 years practice, it is K40 000 and for lawyers with less than 10 years practice, it is K30 000.
Registrar of Supreme Court of Appeal and High Court of Malawi Agnes Patemba said on Thursday her office was waiting for the parties to file applications for assessment as directed by the Constitutional Court.
In its ruling, the court ordered the first respondent Peter Mutharika to bear his own costs while MEC, as a duty-bearer and not a holder of rights seeking to vindicate legal rights, pay petitioners, costs for litigation.
Apart from paying petitioners’ lawyers, MEC is also expected to pay Chokotho and other private lawyers hired to assist the Attorney General during the trial.
In its ruling, the court opined based on Section 20 of the Electoral Commission Act (ECA) that the AG may end up taking a partisan role in constitutional proceedings even where his office is not a party to such proceedings. The court said this is inconsistent with Section 98 of the Constitution.
The court observed that MEC, as a body corporate under the ECA, was at liberty to engage its own legal practitioners other than the AG.
During his 2019-2020 Mid-Year Budget Review Statement in Parliament, Minister of Finance, Economic Planning and Development Joseph Mwanamvekha said expenditure projections had been revised upwards from K1.74 trillion to K1.84 trillion due to, among others, the presidential elections case.
He, however, did not disclose the exact figures and Treasury spokesperson Davis Sado asked for more time to get information from people who manage database.