Activist, concerned citizens demand probe into K7bn lawyers’ fees for poll case
The court directive–ordering the Malawi Electoral Commission (MEC) to pay MK7 billion to two legal teams that represented President Lazarus Chakwera and Vice-President Saulos Chilima in the May 21 2019 presidential election nullification petition to get a collective K7 billion fees–continues to attract public ridicule with the latest to express their misgivings being a grouping of “concerned citizens” led by activist Philip Kamangila.
While prominent legal scholars and Malawi Law Society (MLS) have given varying positions on the legal bill to be footed by MEC as assessed by Agnes Patemba, registrar of the High Court of Malawi and Malawi Supreme Court of Appeal, the concerned citizens have since called upon the Anti-Corruption Bureau (ACB) to investigate the matter and get to the root cause of what they describe as a “ridiculous payment”.
Under Order 25 of the Courts (High Court)(Civil Procedure) Rules of 2017, the registrar has the power to assess the costs while not allowing costs unreasonably incurred or those that are unreasonable in amount.
Chilima and Chakwera were first and second petitioner respectively in the case while former president Peter Mutharika and MEC were first and second respondents in the Constitutional Court case which saw the May 21 2019 presidential election results overturned.
All sides had been represented by “battalions of lawyers” in the period of hearing of the case–which attracted several friends of the court and huge public following.
The case led to the nullification of the 21 May, 2019 presidential election, paving the way for a fresh presidential election on 23 June, 2020 in which Chakwera and Chilima triumphed after forming an electoral alliance.
But while the court ruling and the subsequent election seemed to have pleased many Malawians, the “astronomical” expenses of the case–coming when Chakwera, Chilima and some of their lead lawyers are now in power–have raised eyebrows.
In statement made available to Nyasa Times, Kamangila and the “concerned citizens” say the “obscene figure” reflects on “corrupt and bad leadership”.
“It is also a sign of a corrupt government which is stealing tax-payers money through unjustified means. To be specific, the whole deal seems to be very suspicious and it reads like ‘wachiona ndani’.
“The beneficiaries of this looting are the ones in leadership. Dr Chakwera is the President and Dr Chilima is the Vice President. The Minister of Justice and the Attorney General were also part of the legal team in the case,” reads the statement in part.
It adds: “Is this not a ploy to defraud government through this judicial looting? We are aware that government already spent about MK254, 000, 000 on the same case at High Court and another MK120, 000,000 in the Supreme Court.
“We, as Concerned Citizens, can hardly understand the mathematics that arrived at such a figure within a space of months under the common denominator of legal fees.
“This, in all fairness, is outrageous and people may not be that highly wrong to be thinking and labelling such an act as merely a judicial looting on an industrial scale.
“As citizens we have a stake in the affairs of this country and we will unstoppably weigh in with our voice on state and non- state actors whenever we feel that some elements seem not to resonate with the development path that this country is travelling on.
“Manifestly, we demand that our learned colleagues that had the mathematical computation of coming up with the K7 billion legal fee–the record breaking fee in the country–be accountable and produce a charge sheet that explains in detail all elements that bring up this ominous and obscene figure”.
In her assessment, Patemba ordered that Chilima’s legal team be paid K2.3 billion costs for the Constitutional Court case and K877.7 million for the appeal.
On the other hand, Chakwera’s lawyers will smile all the way to the bank with a K3.08 billion cheque for the Constitutional Court proceedings and K726.4 million for the appeal filed by former president Peter Mutharika and MEC.
The court also rdered MEC to meet the costs within 45 days.
Chilima’s legal team comprised current Attorney General Chikosa Silungwe as lead counsel, Marshall Chilenga, Bright Theu, Khumbo Soko and George Mtchuka Mwale.
Chakwera’s team of lawyers was led by senior counsel Mordecai Msisha and had Titus Mvalo (now Minister of Justice), Pempho Likongwe, Innocencia Nkhoma, Chrispin Ndalama, Isaac Msongeya and Charles Mhone.
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Foseki
When Muli was being paid you kept quite Foseki akutuma
I am going to Mugg&Bean for a cappuccino. Coffee! Anyone?
Kodi how much was Frank Mbeta paid for representing PETER MUTHARIKA?
And how much did MEC pay its lawyers like Tamando Chokhotho?
Lawyers are not cheap mind you. We r paying all this coz of stupidity of the previous MEC under Jane Ansah. If they had not appealed against the Constitutional court verdict the figure could be lower but because they wanted APM to continue ruling this country that’s why they appealed. So let CHILIMA & CHAKWERA lawyers get what the courts have assessed. Remember they worked day and night to win this case. So stop this FUSS!
Tonse government has big time to explain it to the citizens coming up election 2025.
This is day light robery.
Moreover most of the lawyers have spaces in the government then why should taxpayers awarded them such big cash.
By the time 2025 comes, do you really think we will still be talking about these issues? Won’t there be bugger issued to focus on? So far we have not seen any tangible results from the tonse alliance. They did not even set out the goals for the first 100 days in office.
Moreover, there are no big fish that have been successfully prosecuted by ACB. It begs the question whether the big fish are in bed with the current regime.
To see how absurd the K7bn is let’s imagine the whole team was full of junior lawyers who charge K30,000 per hour. This figure can pay 100 junior lawyers working 24 hours per day in 100 days. So we know for a fact no human being can work 24 hours per day, there were not more than 30 lawyer and the case in court appearance both in High and Supreme didn’t go over 60 days.
Calculate based on senior counsel fees. Were there junior lawyers used in this case?
The High Court award of K7billion legal costs is illegal and irregular. legal costs should have been awarded on one and attorney-client scale. The Court had no business in the appointment of large number of lawyer for each party. Legal costs are paid as refunds and not damage claims as implied in this case. Chakwera and Chilima ought to file civil claims against wasted cost and not this form of reward.
Where is Mtambo and Trapez?
They are busy scratching their itchy testicles
Under the wraps of the ruling elites.Money corrupts big minds
Probably too busy doing what Chisale was doing to APM
This figure might appear exhaustive to some quarters but have we forgotten how much MEC was going to pay the Southafrican Lawyers who were hired only to appeal the case? If I remember very well the amount was K600,000.00 only for submissions on appeal
that figure for appeal was for a new team of lawyers to fly into the country, stay in Malawi for those months, and prepare the entire case from scratch.
Here, the tonse alliance were home, they didn’t need to relocate for months, and they already knew the whole history of the case so preparing the appeal wouldn’t have taken anywhere near the time and effort as the new lawyers.
Also, the Tonse lawyers together have charged a similar amount as what the lawyers from South Africa were charging.
Your point is invalid.
To be frank. This is broad day robbery and mockery to Malawi. Even in the US standard, this amount is obcene. The bill needs to be audited
Activist, my arse.
Njilu basi! Ukuphani umphawi. MEC paid K5 bn to its legal team. They also paid hundreds of millions to ghost south african lawyers. There was muted noises. Anadya ndalama zimenezo.
Now the Registrar has determined how much the Tonse Alliance team is to get and you are up in arms. Why double standards?
The Registrar used legal provisions and guidelines to determine on the K7 bn. Alekeni amnzanu adye. Mwatani kodi?
what guidelines and legal provisions did the registrar use?
Vuto la anthu inuyo simukudziwa kuti, khoti limangoona Malamulo akuti bwanji. Silikuona mboma mulindani. Enanu ndinu anthu ophunzila Komanso ndinu osokoneza Malamulo mumayendera kuona munthu osati lamulo likuti chani?
People like to comment and justify the fees because of the result i.e they’re MCP or UTM supporters, and they have no knowledge whatsoever of the ethical duties of a lawyer when it comes to fees. Let us start by setting out the relevant provision in the Legal Practitioners Practice Rules.
Undercutting or overcharging
6. — A legal practitioner shall not charge a fee that exceeds a fair and reasonable amount or which cannot be justified given the nature and scope of the brief or that is so disproportionate to the services rendered as to introduce an element of fraud or dishonesty or undue profit.
In determining what is fair and reasonable fees, a legal practitioner may take into account –
(a) the nature of the matter including its difficulty and urgency, its importance to the client, its monetary value and the need for special skills or services;
(b) the time and effort expended;
(c) the results obtained;
(d) the customary charges of other lawyers of equal standing in the locality in similar matter or circumstances;
(e) the likelihood if made known to the client that acceptance of the retainer will result in the lawyer’s inability to accept other employment or instructions; or
(f) the experience and ability of the lawyer.
Let us move on to the Malawi Law Society Code of Ethics, Chapter 14, titled ‘Fees’
Statement of Principle: “A lawyer’s fee must not exceed a fair and reasonable amount.”
1. Is K7bn a fair and reasonable amount? Most lawyers including Senior Counsel, have not billed that much in the last 20 years!
To determine what is fair and reasonable, the code of ethics lists some factors including:
a. “The nature of the matter, difficulty, urgency, importance, its monetary value and need for special skills/services.” Here the matter was difficult, urgent and important. But none of the lawyers had a special skill or service in dealing with election matters. Yes, Modecai SC is a very experienced and seasoned lawyer, one of the best, but how much of the K7bn is being charged by Msisha SC? What did Modecai SC bill? What experience and skills do the rest of the lawyers have? Are they even regarded the best in Malawi? Did we even consider any of them high profile? Have they acted in any high profile matters before? When you are in need of a lawyer, are they even the first lawyer you decide to instruct? What cases of importance, complex legal argument, or speciality have they undertaken in their careers?
b. “The customary charges of other lawyers of equal standing in the locality in similar matter and circumstances”. How many times have the Tonse alliances lawyers charged their previous clients billions of kwacha? Name one case in this history of Malawi where a lawyer has even charged one billion kwacha in legal fees ever? How much would Queens Counsel from the UK or Australia, SC from South Africa, or experts in America charge for a matter like this? Round up all the SC’s in Malawi and ask them what they would have quoted or charged MCP and UTM for a case like this. K7bn? Or more like K400m?
c. “the likelihood if made known to the client that acceptance of the retainer will result
in the lawyer’s inability to accept other employment.” You mean to tell me that the Tonse Alliance lawyers turned down big cases that pay this much, in order to do this case? Weren’t they doing it for free, part of their civic and public duty, in the first place?
d. “The experience and ability of the lawyer.” Apart from Modecai SC (who probably isn’t charging even K500m) what experience do those lawyers have, individually?
e. “ANY ESTIMATE GIVEN BY THE LAWYER.” What estimate did the Tonse Alliance lawyers give? Show us evidence of this, that the Tonse Alliance lawyers gave their clients (MCP and UTM) an estimate of the fees to be K7bn, and MCP/UTM agreed to the quote, and signed a retainer.
f. Whether fees are contingent on the outcome of the matter. If this was the case, where is the retainer stating this? If contingent, then why have the Tonse Alliance lawyers not billed and been paid these figures by UTM and MCP? The nature of party and party costs is for the court to order MEC to pay UTM and MCP a ‘reasonable’ fee for instructing their lawyers. Just because MCP and UTM paid their lawyers huge amounts, it does not mean that they should be reimbursed for instructing 20 lawyers in the matter. This is not Nigeria, where the whole court room is filled with a legal team of lawyers.
g. “the client’s prior consent to the fee and the sophistication of that client”. Where is the evidence that the Tonse Alliance lawyers were given a quote/estimate of the fees, accepted it, and retained these lawyers for K7bn.
h. “the direct costs incurred by the lawyer in providing the services.” Were the lawyers staying in the presidential suite at the Burj al Arab in Dubai and flying in on a private jet to attend each court hearing?
2. “A lawyer must provide to the client in writing before or within a reasonable time, after
commencing representation, as much information regarding fees and disbursements as is
reasonable and practical in the circumstance, including the basis on which fees will be
determined.” Was this done? Where is the evidence of this? What is the basis of charging K7bn?
Clause 3. of Chapter 14 of the MLS Code of Ethics is not applicable here.
4. “A lawyer must clearly identify on each statement of account the amount attributable to fees
and the nature and amount of any disbursements.” This is self explanatory. Where is the evidence? And please, do not use tippex on these statements.
5. “A lawyer may charge as disbursements only those amounts that have been paid or are
required to be paid in relation to the work he is handling or those that are paid or are
required to be paid to a third party by the lawyer on a client’s behalf.” Enough said.
6. “A lawyer must disclose to a client all party-and-party costs received by the lawyer in
connection with the client’s matter.” We are yet to see if the lawyers will disclose to MCP and UTM these fees when/ if they are paid, and whether MCP and UTM will retain those amounts for themselves as the lawyers allegedly agreed to undertake the case for free, or whether MCP and UTM will give their lawyers the billions.
7. “Provided that the client does not pay more as a result, a lawyer may divide a fee with the
following:
(i) a firm member;
(ii) a lawyer who is not a firm member but only if the client is aware and approved of
that lawyer’s involvement and the fee is divided in proportion to the work done and
responsibilities assumed by each lawyer;
(iii) a lawyer who is not a firm member who has referred a client as compensation for
the referral but only if the client is aware and approves and the fee to the client is
not thereby increased.”
Where is the approval by UTM and MCP for the crowd of lawyers that claim they were part of the matter? What work was done by each? What responsibilities were formally assumed by them? Or was it all moral support?
Clauses 8, 9 and 10 or not applicable to this scenario.
11. “All lawyers in private practice shall be bound by the Minimum Scale Charges made under
the Act.” What are the Minimum Scale Charges under the Legal Education and Legal Practitioners Act?
Dear Citizens of Malawi. Based on the above, tell me, if the Executive gave you a choice to choose whether or not K7bn of your hard earned tax payers money which you have paid to Government to construct roads and bridges that do not collapse, build schools, hospitals, and for peace and security and so on, should be used to pay the Tonse Alliance lawyers? Or would you vote for it to be put to proper use, which way do you vote?
Yes = pay the Tonse Alliance lawyers
No = put the money to better use
Malawi law Society, where are you? Are you keeping quiet because you are waiting to collect your 1% law society levy of K70m?
Judiciary, you’ve proved your independence from the DPP Government in a landmark ruling making African/World History. Let us see the ‘independence’ from the MCP/UTM Government as well.
MRA, are you going to ensure 16.5% VAT is collected? What about With Holding Tax of 20%? What about Corporate Tax?
Fellow Malawians, I rest my case, and leave matters in your hands, the hands of the Malawi Law Society, and the Judiciary.
Yours truly,
Concerned citizen of the Warm Heart of Africa
My friend you will write all good things but this whole thing was premeditated. It was a scheme well crafted by the judiciary Chilima, Chakwera. The initial arrangement was to make sure that by whatever means they should take DPP out of government, then fleece government and they did just that
Kafufuze kaye ya Mulli ija 11 billion ndiye ukamaliza uyambe ya ma lawyer tikupelekeza ku msewo tikamatche
for me and people from my community we do not see any problem with that bill. the mcp and utm were represented by many lawyers and witnesses. infact those lawyers did a very commendable job hence they need to be pampered. tikuyenda monyada komaso mwa thamo kamba ka ma lawyers amenewo. further more the only recognised CSO we know is HRDC the rest are just dpp sympathisers. who is kammangira and where was him during 2019 demos.
Where in the law does it allow for pampering? That means HRDC should also be pampered? Should we also pamper the judges who sided with MCP and UTM in the petition? And the Supreme Court judges as well for dismissing the appeal? What about all those people who protested for change?
Why not asking for the same 5billion paid to Kaphale and Mbeta team??
Why only looking on one side and not both? That’s why we are saying u have sinister motive.
That’s why we are saying u are Cadets masquerading as NGO.
We have already said who ever did the calculations is ungodly corrupt incompetent and greedy. If you were to do chicken mathematics it translates into K250,000,000.00 per day this ridiculous. I would urge ACB to constitute an independent commission to check on these figures accuracy forge about their being an independent organ of government this is day light mafia
Check again the accounts of their sponsores UTM and MCP if within the trial period monies amounting to even a quarter of this bill was paid to the lawyers. Check even the lawyers accounts IG at any one time in their history they ever hot a hundredth of what we are talking here. FIU will hive you the details as they did with the frozen accounts. STOP stealing our taxes build a new Malawi free of hungery lion and hyenas
He is a useless activist who does not how lawyers are getting paid when representing someone in a court case.
The blame should go to Jane Ansah. What was the rationale for her to contest the petition. Only DPP should have contested the petition.
Now is the time to loot public funds legally. Ameneyu ndiye Malawi yemwe ndimamudziwa. When I look to my right, to my left, behind me or in front of me I see crooks and thieves everywhere.
Nde tchulani mtengo ndinu ma activist timve, I think mukuwudziwa mtengo wake
Theft by trained lawyers cannot be investigated by acb director who is also a trained lawyer. These lawyers have loyalty to the bar where they are all members and they decide who to reward including themselves.
But this one is not a theft rather its a straight forward thing.First calculate the days since the election case started and you will stop your argument.Remember,lawyers are paid by the hours they accumulate at a particular case.
Whilst I appreciate the concerns of the Activist and Concerned Citizens, I am however baffled that the two parties have not bothered to convince MEC to inform the public on how much it has spent on Kaphale and it’s legal team. And can they please shed light on whether the South African lawyers were paid or not? Once these issues are addressed we may then question the basis of the 7 billion bill. Otherwise we are being one sided here.
I agree 100% here. The biggest culprit here is Mec and it is immensely in order to ask Jane Ansah to account for her unscruplus decisions and overtly biased conduct in the elections case which caused Malawians to lose such ominus and absurd amounts of public money. We the public are the ones suffering now and for the foreseeable future. Jane Ansah and Mec have a clear case to answer to Malawians if such behaviour is to be curtailed in future. Concerned citizens should pick this one up as well.
Tonse tongokhala ma Loya basi.
This is stealing using sophisticated means.7 billion kwacha payment is pretty expensive.Who will cough all that money??? From my tax oooh shit Malawi will be bankrupt with these willy nilly decisions.
For a country that struggles with supplies and collection of revenues for most of its ministries. This is obscene unnecessary spending. MCP and UTM haven’t even fulfilled none of their election promises and they go and blow this amount of money for few lawyers to party on is truely unacceptable and immoral
Organised judicial heist.these people told us their lawyers were representing them for free. Even if they were to be paid lawyer and client agree on how much they will be paid. We saw this in the letter of engagement with the South African lawyers. Of course these lawyers had intention to provide free legal fees but Potani ruled that they should be paid as part of the conspiracy. In the first place how did they know that the case will go in their favour . Had it gone the other way,would Chakwera and Chilima afford such legal fees given that their combined assets as declared is less than MK500million. This whole case was a fiasco and predetermined. Judges,lawyers and petetioners were having meetings on how they would take DPP out of government and eventually fleece the government in legal fees. Not surprising Silungwe and Mvalo are on top of things to see to it that the loot is delivered and Chief justice is standing ready to dismiss any objections to the heist.
I couldn’t have said it better. This case was a well rehearsed conspiracy with an outcome predetermined from day one.
Would it be true that from the 7 Billion owed the Lawyers would need to submit back to Government the VAT Tax of 16.5% for the service in addition 35% employment tax. Even with taxes deducted the amount determined by the Court is Excessive.
Yes they need to pay tax on it, 5% of it will come back to government .
Don’t forget withholding tax of 20% and the 1% law society levy…
HRDC any comment?
they can not comment now as their mouths are full of first grade honey