Attorney General ‘lawyers’ private firm in Raiply Malawi Ltd case

Malawi’s Attorney Generals have a penchant for controversy.

The current one, Charles Mhango is embroiled in a case where he has been caught representing a multimillion-dollar private wood processing company, Raiply Malawi Limited, as his client, a move a legal expert says apart from being illegal, raises eye brows.

Raiply Malawi Limited, a subsidiary of the Kenyan Group Rai, is owned by Indians.

A Malawian Professor of Law at the University of Cape Town in South Africa, Danwood Chirwa said that the Attorney General has no mandate whatsoever in criminal prosecutions and investigations.

Chirwa noted that Malawi’s previous Attorneys Generals have entangled themselves in such cases due to what he coined “their own misplaced enthusiasm, lack of appreciation of their job description and lack of professionalism and due to the docility of the leadership of the prosecutorial agencies,” reported NyasaTimes, Malawi’s popular online publication.

“It is in fact a ground for the dismissal of an Attorney General that he or she is compromised in his or her performance of this function. The only role that the A-G has in prosecutions relates to the general and special directions he may give to the Director of Public Prosecutions (DPP)”, Chirwa said.

He then schooled the AG – as a politically appointed top-notch lawyer in Malawi – saying he was expected to restore honor and decorum to the office of head of the legal bar.

“The A-G’s primary and only job is to serve as the principal legal adviser to the government. This constitutional mandate has to be discharged professionally and independently,” Chirwa said.

Investigations by the Centre for Investigative Journalism Malawi (CIJM) through publicly available court documents can reveal that the Attorney General’s office has been having Raiply Malawi Limited as its client in a case in which the Department of Forestry is embroiled in a court battle against a group of independent saw millers at Chikangawa within the Viphya plantation in Mzimba.

While, the AG, as government legal counsel, has been duly representing the Department of Forestry in the Ministry of Natural Resources, Energy and Environment in the case, the AG’s office has gone overboard and extended its legal protective hand to one of Malawi’s powerful and influential private companies, Raiply Malawi Limited.

The case dates back to April 2016 when officials of Raiply Malawi apprehended some three women independent saw millers accusing them of encroaching in the company’s 20, 000 hectares’ Concession Area of the giant 54 hectares manmade Viphya forest which is situated in Mzimba, Northern Malawi.

The First Magistrate’s Court in Mzimba district acquitted the women after it established that the contested area actually did not belong to Raiply after all but rather it belonged to the government of Malawi through the Department of Forestry.

Meanwhile the women went back to continue logging and processing timber in the same area, a move that angered Raiply Malawi which probably in a show of mighty and massive influence instructed the government of Malawi through the Attorney General’s office to take the matter back to the court.

The Department of Forestry then joined forces with Raiply Malawi as Applicants and filed a fresh case with the High Court of Malawi.

While the Forestry Department was represented by the Attorney General, Raiply was not represented hence ironically was also represented by the Attorney General in the case.

The two institutions solely represented by the AG applied for an Order of injunction restraining the women from continuing making timber out of the logs out of the contested area.

Justice Dingiswayo Madise of High Court Mzuzu Registry granted the Order.

The matter went into full hearing in which Raiply and the Department of Forestry were represented by the Attorney General through State Advocate in the Ministry of Justice and Constitutional Affairs Apoche Itimu.

In his June 23, 2017 ruling of Civil Cause No. 95 of 2016, Justice Madise ordered that the millers stop logging in the area.

The Judge then ordered the Department of Forestry and Raiply to release the logs that were already harvested to the millers upon payment of relevant forestry fees.

But the Department of Forestry represented by the AG, and Raiply Malawi, not represented, appealed against the ruling with the Department of Forestry as the 1st Appellant and Raiply Malawi as the 2nd Appellant against the millers, Sophilet Chirwa and Others as Respondents.

Come June 27th, 2017 the two sides settled the matter by way of Consent Order that required the Respondents to make upfront payments of forestry fees as ordered by the High Court and the Appellants releases the logs within an agreed period of time.

The Consent Order whose copy we obtained was as well signed only by the Attorney General, represented by Senior State Advocate Apoche Itimu on the side of the Appellants while no legal counsel or official for Raiply Malawi signed.

Counsel for the Respondents George Kadzipatike signed on behalf of the Respondents.

However, Raiply Malawi Limited Chief Executive Officer Krishna Das in an interview refuted allegations that the AG is representing his company.

He refused to name which Lawyers or firm were representing his company. Similarly, CIJM through perusal of court documents did not find names of private lawyers representing the company except AG.

Asked to name them Das refused saying he could not reveal company lawyers to the public, as that was not admissible by Raiply company values.

“We were duly represented by our lawyers in the case…I can’t comment any further,” Das said.

The Attorney General Charles Mhango for five weeks dodged our attempts to respond to our queries as we tried to get his legal understanding of the situation.

But in an interview Kadzipatike confirmed to know only lawyers from the Attorney General’s office to be involved on the part of the Applicants and Appellants in the case for almost all stages of the case.

Malawi Law Society President Khumbo Soko said it could be tricky to conclude that the AG was representing Raiply in that case because for one to be recognized as a legal representative of a party to the case, the law firm or particular lawyer has to file a notice of appointment before the case.

“So, unless the AG filed that notice of appointment that he was representing Raiply it will be not proper to use logic to conclude that he was representing the company,” said Soko.

We did not find any notice filed by the AG.

Soko also said it is not possible for a private firm to be represented by itself without a legal counsel or firm.

The issue of Indians having a foothold in the high echelons of the Malawi government are not new and seem to gaining roots  as others say Malawi is under ‘state capture’.

•This story was supported by the Centre for Investigative
Journalism Malawi (http://investigative-malawi.com) and the Organized Crime and Corruption Reporting Project (https://www.occrp.org/en).

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