MEC faces another court battle over payment for Kaphale, South African lawyers

It is no longer a pouring rain, but hailstorm for the embattled Malawi Electoral Commission (MEC). Fresh from the Supreme Court of Appeal (SCA) where it was slapped with a K9 billion bill in legal costs, the electoral body faces another legal battle over the payments it made to Attorney General (AG) Kalekeni Kaphale and South African law firm in legal fees.

The Mzuzu-based human rights and governance watchdog, Youth and Society (YAS), has given MEC up to Friday 22 May 2020 to furnish the nation with tangible information on the amount it paid Kaphale and the South African law firm – Mboweni Maluleke.

Through a letter the YAS executive director Charles Kajoloweka has addressed to MEC Chief Elections Officer, Sam Alfandika, the organization reminds Alfandika of the remarks the MEC chairperson Jane Ansah made at a news conference held on Friday 13th March 2020 that EC had paid the AG fees for handling the case on its behalf.

Kajoloweka is asking Alfandika to confirm or deny this and that in case the fees were already remitted to the AG for acting on behalf of EC, he should indicate the legality and appropriateness of the payment in view of the 3 February 2020 verdict as upheld by the country’s highest court.

“In the event that it is illegal and improper, we hereby demand that your office should within seven (7) days from this day ask the AG to return the funds to EC immediately,” reads the letter in part.

On the involvement of the AG in the procurement of the South African lawyers on taxpayers’ expense, Kajoloweka demands clarification on whether MEC complied with the Public Procurement and Disposal of Public Asset Act (PPDA) when procuring the legal services.

YAS draws the attention of the MEC chief to the letter the AG wrote to the Chief Executive Officer for Umodzi Hotel Limited dated 11 March 2020 in which he indicated that he only received affirmation from the Director of Public Procurement that the procurement protocols for the South African lawyers had been successfully completed on 10 March 2020.

“On the other hand, the letter indicates that the lawyers had already arrived in the country on 8 March 2020, two days prior to the said communication. This means the lawyers were in before the AG had received affirmative clearance for the procurement and before a contract was sealed. Sir, help us understand whether and how this is regular and in compliance with PPDA,” requests Kajoloweka.

Kajoloweka says it is more disturbing to note that no open tender for legal services is known to have been floated in accordance with Section 37 of the PPDPA Act and that neither does the procurement in question qualify for exemptions of open tendering in terms of Section 37 of the PPDPA Act as the subject matter is neither sensitive in nature nor to do with national security.

“Kindly indicate if the contrary is true and share the evidence to substantiate your submissions,” he adds.

Similarly, Kajoloweka cites press reports that the Secretary to the Treasury and the Minister of Finance were  unaware of the procurement of legal services from the South African lawyers at public expense.

“Kindly indicate in what manner it was proper for the EC through the AG to procure the procurement and commit a huge sum of public funds in this manner,” he said in the letter.

Kajoloweka argues that the legal services EC procured do not qualify for restricted tender method in terms of Section 37(3) of the PPDPA Act.

He also states that the service does not also qualify for international competitive bidding in terms of Section 37(5) & (6) of the PPDPA Act.

“Kindly indicate if the contrary is true and share the justification that may have been advanced in support of either of these methods in accordance with the law. Assuming the EC employed the single-source method, kindly indicate what justifications were supplied in support of this method in terms of Section 37(9) of the PPDPA Act. Kindly also indicate if the preferred method was vetted by the Anti-Corruption Bureau in line with Section 37(11), PPDPA Act. Please share the necessary evidence in that regard,” demands the YAS boss.

Kajoloweka claims he has information that on 20 February 2020, David Matumika Banda, who is the Director of Legal Services for EC, prepared and filed skeleton arguments for the appeal for which the foreign legal services had been procured while the hearing of the appeal was held on 15 April 2020.

This suggests that all the requisite procedures had been satisfied at this juncture.

“With that in mind, information floating in media indicates that the legal services were procured at the whooping and obscene sum of US$788,500 from public funds. Reassuming that the EC followed the single-source procurement method, would you please explain how you may possibly have complied with the requirements of the General Policy of Diligence stipulated under regulation 117 of the Public Procurement Regulations of 2004.

“For the voidance of doubt, regulation 117(1) (c) requires that prior to the awarding of any contract on single-source procurement basis, the procuring entity shall ascertain that, among others, the price to be paid to the provider is reasonable.

“Regulation 117(2) further requires that the procuring entity should conduct a price analysis with a view to that the price to be paid is fair and reasonable. Sir, undoubtedly, you would appreciate that these requirements are to ensure that public money is spent with prudence and probity and, to be clear, not wasted,” stresses Kajoloweka.

“You are undoubtedly aware that on 13 April 2010 the Chief Justice denied admission of the said South African lawyers to represent the EC in the appeal case, rendering the procurement of their services by EC fatal.  Please indicate how much EC has paid the firm and its justification.

“We should appreciate to hear from you by Friday 22 May 2020. Otherwise, we are minded to approach the courts for necessary redress against you and other officials involved,” he warns.

Alfandika was not immediately available to comment on the contents of the letter.

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