Malawi’s chief justice has rejected an application by the Malawi Electoral Commission (MEC) to allow two South African lawyers to participate in the country’s disputed presidential elections case.
On Wednesday, the country’s Supreme Court is due to hear an appeal by President Peter Mutharika and the MEC, who are challenging the Constitutional Court decision in February that nullified Mutharika’s re-election, citing widespread irregularities.
Lawyers Dumisa Ntsebeza and Elizabeth Baloyi-Mere were hired by the electoral body to represent it in the case, amid protest from the country’s lawyers and opposition parties.
The cost of the legal services, pegged at R788 000, had raised controversy at a time when the government is struggling to find money to fight the coronavirus pandemic.
Chief Justice Andrew Nyirenda threw out the two lawyers’ applications, citing their failure to be present during the application.
The Malawi Law Society (MLS) had filed an objection to the application in court, saying that procedures for the procurement of the lawyers had been flouted; that their fees were exorbitant; and that the MEC had failed to demonstrate that local lawyers were unavailable to take up the case.
MLS spokesperson Martha Kaukonde told the Mail & Guardian that the body had raised the absence of the lawyers in court as a preliminary objection — prompting the chief justice to dismiss the application.
“The issue of [the] cost of the contract was not before the court. We mentioned it in our opposition document as a preliminary issue, but today the only issue was their absence from court,” said Kaukonde.
Despite the decision, taxpayers are still likely to find themselves out of pocket — the contract between the MEC and the lawyers had a clause stating that Malawi had to pay half the amount upfront.
The two South African lawyers did not arrive in the country because of public-health concerns about the coronavirus. Instead, they presented themselves to the Malawian embassy in Pretoria. They wanted to participate in the case through video conferencing, but the court rejected their participation.
When approached for comment, Baloyi-Mere said that she was not permitted to speak to the media.
Academic and blogger Jimmy Kainja said the hiring of South African lawyers was a symptom of growing impunity by the electoral commission, and that doing so had been prioritised by a cash-strapped administration at expense of a health crisis, among other issues.
“Malawi is facing multiple crises, even in absence of the Covid-19 epidemic, which Malawi is currently ill-equipped to deal with — and the cases are on the increase,” he said. “MEC acted with impunity, knowing that they have the backing of President Peter Mutharika, who refused to implement parliamentary recommendations to fire the commission’s chairperson and commissioners for incompetence.”
“The hiring of these lawyers and all the secrecy around it is only possible because of the symbiotic relationship between MEC and the ruling Democratic People’s Party (DPP). It is becoming increasingly difficult to differentiate between MEC and [the] DPP,” said Kainja.
Malawi’s attorney general, Kalekeni Kaphale, who vetted the hiring of the law firm, declined to comment on the implications of the court’s decision. The MEC’s director of legal affairs, David Matumika, said the contract will be reviewed.
“The terms of the contract will have to be reviewed by the parties in view of this development,” Matumika said in a text message, without elaborating.
Mutharika won a narrow re-election in May 2019, but the country was soon plagued by political unrest amid regular street protests as the opposition and civil society rejected the result.
After the court ruling in February, the country is due to hold fresh presidential elections on June 2, if the appeal case by Mutharika and the electoral body is unsuccessful.