- Serious breach of the law in the hiring of SA lawyers for elections case
Findings of the Office of Ombudsman investigation into the Malawi Election Commission (MEC) hiring of South African lawyers of the presidential election appeal case has opened a Pandora’s Box. Writes Golden Matonga.
In the most consequential investigation to date, the Ombudsman has ordered former Attorney General Kalekeni Kaphale and Malawi Electoral Commission (MEC) Chairperson Justice Jane Ansah to pay back public funds amounting to K3million used to host South African lawyers the report says were illegally hired.
The ombudsman has also asked the Judicial Service Commission to review Justice Lloyd Muhara’s attainability as High Court judge following his involvement in the controversy after investigations uncovered his role in bulldozing the illegal appointment of Board Chairperson for the state agency, Public Procurement and Disposal of Assets (PPDA).
It began when the Commission controversially hired Mboweni Maluleke Inc Attorneys—for a contract sum is $788 500 (about K600 million), half of which had to be paid in advance on or by March 13 2020, to represent it in Supreme Court appeal of the presidential election case that followed the 2019 disputed elections.
The investigation, titled ‘Upholding Professionalism’, found that the lawyers were not paid eventually but faulted the way procurement systems and laws were flouted. And its consequence appears to be far reaching.
The board chairperson, the report further uncovered, ended up playing a critical law in enabling MEC to hire the lawyers in disregard of the laws and has been ordered to reimburse all allowances and financial benefits he received from PPDA amounting to K8 million.
The director of PPDA and his deputy also came under censure and have been recommended for review over their suitability for office.
“…for the former AG Mr. Kalekeni Kaphale, SC and former MEC Chairperson Justice Jane Ansah (rtd) abusing their powers and breaching procurement laws the SA lawyers would not have come to Malawi. I thus direct that the former AG and former MEC Chair should refund in equal amounts K3, 155,248 which is the Malawi public funds money that was expended on the SA lawyers through accommodation, beverages and meals at BICC Umodzi Park hotel for the period the lawyers were in the country. This money should be paid back to MEC and proof of payment should be submitted to my Office by 28th April 2021,” reads part of the report.
According to the report, when questioned by Ombudsman investigators, Kaphale indicated MEC 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.
Kaphale further stated that his advice to MEC on the lawyers to replace him was non-binding.
“They were free to take or leave it. More so as the MEC IPDC and later Commissioners themselves would have to approve whichever lawyers he would have suggested as well as the proposed terms of their engagement, and following this the Public Procurement and Disposal of Asset Authority (PPDA) and the ACB would have to do likewise before the retainer was signed,” reports the Ombudsman.
The former PPDA Chairperson Mr. Madalitso M’meta was illegally appointed on the PPDA Board. He knew or ought to have known of his illegal appointment but continued to sit on that Board regardless. Further to this he never recused himself nor declared his conflict of interest when the PPDA Board was considering the submission from MEC on the procurement of SA Lawyers.
M’meta, ordered the Ombudsman, should reimburse by the 28th May, 2021 through the PPDA the sum of MK 8, 757,557.07 which is the amount that according to the PPDA was expended on Mr. M’meta in terms of Airtime, sitting allowances, T&T allowances and conference and accommodation for the period between November 2018 to June 2020.
M’meta could not be reached for comment on several attempts.
Judicial Service Commission deliberate and determine Muhara’s case and communicate to the Ombudsman office and the public by 28th May, 2021.
The previously unknown role of the PPDA chairperson received more attention from the Ombudsman. The report reveals that M’meta had personal interest in the approval of the contract, as one of the lawyers for Peter Mutharika in the same election case.
“The apparent bulldozing to the grant of the no objection by especially the PPDA Chairperson before the Anti-Corruption Bureau (ACB) clearance was obtained was maladministration,” stated the Ombudsman, adding: “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 a serious breach of the law.”
The ombudsman observed that PPDA completely dependence on the professional judgment of the Former AG 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 PPDA is supposed to be playing.
Added the Ombudsman: “The failure by the DG of PPDA to request the Board an extension for the date of the meeting for the preparation of the technical report on the request for procurement of the SA Lawyers by MEC and failure to impress on the Board on the importance of such report was maladministration. The suppression of facts by the DG of PPDA in the minutes of the PPDA Board extraordinary meeting where he deliberately removed the issue of a technical report to make it look like it was not one of the conditions for the granting of no objection was serious maladministration.”
The most consequential order, though, is related to Muhara, a member of the judiciary who now faces possible removal as a judge, a rare occurrence in the judiciary where security of tenure for judges is fundamental and removal as proposed is unprecedented.
“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.
In an emailed 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,” wrote Ansah.
Muhara could not be immediately reached for comment.
Justice Rezine Mzikamanda, who attended the briefing on behalf of Judicial Service Commission chairperson, Chief Justice Andrew Nyirenda, did not comment specifically on Muhara, but said the commission will study the recommendations.
“The report is erudite and thorough. We will read it and we take note of the different points it has raised. I will report to the Chief Justice of the findings,” said Mzikamanda, a member of the Supreme Court.
Malawi Law Society (MLS) Honorary Secretary Martha Kaukonde, also in attendance at the briefing, welcomed the report, noting that majority of those found to have flouted the law were lawyers.
“We appreciate the work which has been done. MLS is happy to see the issues concerning rule of law being raised. 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. We will follow up the issues including the discussion on costs and appointments in public sector. There a few more cases where appointments have not followed the law,” said Kaukonde.
In an interview yesterday, Kaphale said he could not say immediately if he will comply with the ombudsman’s order or challenge it.
“In 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. I have received the report and I am considering it,” said Kaphale.
YAS 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 mainly on 5 issues; whether procurement procedures were followed in the recruitment of the SA Lawyers; whether the legal fees charged by the SA layers 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 SA Lawyers when the Constitutional Court adjudged that his representation of MEC in the election case amounted to abandonment of his Constitutional role and whether the former AG received fees from MEC for the services he provided them when he represented MEC in the High Court.
The main findings include that the single sourcing procurement was done without any justification while Ansah and Kaphale proceeded to agree and sign a contract with South African lawyers before any procurement process started internally was agreed.
The report also faulted Kaphale for his continued role in the case as witnessed by the oversized role in the hunt for the lawyers despite the constitutional court earlier ordering the AG from participating in the elections case.