When Malawi’s then government, under the country’s former President, Peter Mutharika, lost its initial attempt to persuade the courts that the 2019 election was valid, it launched an appeal. But who would argue the case for the government?
To the surprise of many in Malawi’s legal profession and elsewhere, a team from South Africa was contracted to handle the case. The team’s total agreed quote for the case was an estimated USD 788,500 – very high compared with the fees normally charged in Malawi by its own lawyers.
In April 2020, a Malawian organisation, Youth and Society, lodged a formal complaint against the procurement of these lawyers with the office of the ombudsman in Malawi. This week, the ombud, Martha Chizuma Mwangonde, released her lengthy report on the question.
African Court
The findings will be of interest beyond Malawi. One of the legal team from SA was Dumisa Ntsebeza SC, a prominent senior advocate who was recently sworn in as a judge of the African Court on Human and Peoples’ Rights. There was no suggestion that he acted improperly, but the ombud ultimately concluded that the quote – a global sum of R13m - supplied by the instructing attorneys, was not reasonable.
Ultimately, no funds were paid directly to the SA legal team and due to a number of circumstances, they did not argue the case on appeal. But expenses were incurred during a working visit by the team to Malawi. These accounts were effectively settled by the government, and the ombud considered who should finally carry these costs.
The report will also be of general interest because of the example it creates by asking uncomfortable questions about illegalities allowed to creep into official practice in Malawi. Following from those questions, it challenges various bodies – including the Malawi Law Society – to do better in future, taking legal action if necessary, to ensure that the rule of law is upheld.
Seconded
The report puts Malawi’s then Attorney-General, Kalekeni Kaphale SC, under particular scrutiny, along with the head of the Malawi Electoral Commission, Judge Jane Ansah, since retired, who had been seconded to the commission. (The current MEC head is Judge Chifundo Kachale.)
In one particularly satisfying part of the report, the ombud notes how, initially, when she asked the AG about a number of issues, he was singularly unhelpful, asked for further particulars and said that the allegations against him had no basis in law or fact. However, after she reminded him of the powers and function of the ombud’s office, his responses were more forthcoming.
At more than 80 pages, the report is too long for a detailed discussion here, but it repays close attention.
‘Bulldozed’
The ombud’s findings of maladministration concern the way in which the decision by the AG and the MEC head, to settle on a legal team from SA, was bulldozed through committees instead of being properly considered. There was even evidence that minutes of meetings were doctored to prevent her office from seeing the lack of oversight.
She also found that the former Chief Secretary to government, Lloyd Muhara, had ‘knowingly, deliberately or out of sheer incompetence’ facilitated the illegal appointment of a member of the board governing the crucial Public Procurement and Disposal of Asset Authority (PPDA).
The Chief Secretary, a judge seconded to this position under the previous government, made international headlines just days before the second election held after the courts found the first to be valid. He announced, on behalf of then-President Mutharika, that the Chief Justice, Andrew Nyirenda, was being placed on leave, pending retirement, with immediate effect. This was widely seen as a punishment by Mutharika who had threatened the judiciary after twice losing in the courts.
‘Incompetency’
The ombud found that Muhara had been a major player in the illegal appointment to the PPDA of lawyer Madlalitso M’meta. This had been done deliberately, she said, ‘intentionally or out of sheer incompetency or both’. She said this called into question Muhara’s suitability as a high court judge and ordered that the Judicial Service Commission consider and determine this question and report to her, and to ‘all Malawians’, by 28 May 2021.
As for M’meta, who became chairman of the PPDA board, she found he had been fully aware that his appointment was not lawful and that he was determined to go ahead with the procurement of the SA legal team, whether the decision was ‘procedural and legally sound or not’. The reason for M’meta’s determination was obvious, she said. He was a lawyer who had acted for the former president in the elections case heard by the constitutional court. If the MEC were to win its appeal, then the former president’s election would be confirmed.
Given this background, M’meta had a clear conflict of interest but he did not disclose this to the PPDA board, let alone recuse himself from meetings where the procurement of counsel for the appeal was discussed.
‘Corruption’
This showed ‘all the elements of corruption’, said the ombudsman, and she ordered that M’meta should repay all his allowances from the period that he unlawfully served on the PPDA board, with proof of repayment to reach her office by the end of May 2021.
She found former AG Kaphale and Judge Ansah had abused their powers and breached procurement laws in arranging for the SA lawyers to come to Malawi. On an initial visit to Malawi, that SA legal team was accommodated at a local hotel. That hotel bill was to be repaid equally between the two of them, with proof of payment to reach her office by the end of April 2021.
She also made wide-ranging findings about maladministration in the appointments processes to a variety of official bodies that she discovered while investigating the complaint about the SA legal team.
