Law professor declares Malawi ‘too broken to be fixed’ as K7bn legal fees debate rages on
A vocal and outspoken law professor has declared that Malawi is too broken to be fixed, saying he cannot understand why the defense lawyers in the presidential election petition case were awarded a staggering K7 billion as legal costs.
In a Facebook post, Danwood Chirwa says he is yet to be given a satisfactory answer to the astronomical costs award the Tonse lawyers received.
“I’ve been made to understand that party-party costs serve as indemnity for the client.
“In simple terms a litigant pays lawyers for their services, and when the case is decided for the litigant, the losing party may be ordered to ‘reimburse’ some or all of the legal expenses incurred by the winning litigant on lawyers,” he says.
Chirwa says in the polls case, the Tonse lawyers, claimed they were in it for free, saying so the client didn’t pay anything. “What’s more, the freebies meant that the client could admit everyone who showed up at the party door to assist.
“Of course, those who turned up incurred some hard expenses such as transport, lodging, susbsistence, stationary, equipment such as laptops etc,” he says.
He says the party-party costs award were probably meant to reimburse some or all of these hard expenses.
“But to claim party-party costs for the client – the petitioners – who didn’t pay a dime to the lawyers seems to me like unjustified enrichment of the petitioners.
“I understand that in Malawi some lawyers are in the habit of pocketing party-party costs which are meant for the litigant,” he says.
He says the jargon of party-party costs and ‘care and conduct’ are some of the bogus notions lawyers use to swindle clients’ money, saying the true intention of these concepts has been completely corrupted over the years.
The law professor says there are cases where a lawyer enters into an agreement with a client that the lawyer will be paid from party-party costs only, which can justify the withholding of the costs award from the client.
‘Nothing of this sort was said as the case went on. We were told it was all for free. And because it was free, more lawyers joined the case than a client would normally afford or need.
“I am still struggling to differentiate between the moral standing of the lawyers for the petitioners and that of the lawyers for the respondents,” he says.
He says the latter made no claims they were in the case for the greater good.
Chirwa said everybody knew they were in it for the money and for the selfish interests of the party.
He said they were seen as the bad guys and were ridiculed accordingly.
“The lawyers for the petitioners made some claims as to civic virtues, and we admired their courage, service and commitment to the greater good,” he says.
Chirwa says in the end, both sets of lawyers have milked (or will milk) from the same underweight cow
People here 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.
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, the Judiciary, and MRA.
Yours truly,
Concerned citizen of the Warm Heart of Africa
Simple and clear!! These lawyers are here to steal from poor Malawians again via the corrupt judiciary the way they store the May 2019 elections victory from the mighty DPP. Zamanyazi kumakhothi. Koma lachi 40 lidzakwana. And HRDC yangoti pheee as if everything that is happening in Nonse Alliance is normal. Shame!
Been following this discussions with interest because I believe no one should cash in where they did not saw.
Meanwhile, I am reminded of what former MEC Chair person stated about the cost of services of lawyers calculated per hour.
On the other hand, I wish the learned professor shared a copy of the “live” content of the wording about cost of the lawyers in question and those who “contracted” them as a basis for putting into context whether or not they lawyers were entitled to any payments
Perhaps the learned lawyer could consider sharing the same?
This is what we call Corrupted Malawi and the Politicians and even Presdentis and VP are the Same How can they Turn a Blind Eye on such a Judgement as they are aware that Malawi does NOT have that Kind of Funds and They only Blame the DPP and other parties because MCP and UTM are both Corrupt Parties
Do you see what I see guys? HRDC has hibernated on NOKHA ALLIANCE gafment ills. They pretend to see non of what the church and other upright Malawians like Prof. Danwood Chirwa are seeing and raising questions. We said before that this is just a paramilitary wing of MCP. MYP ija yabweranso mwakachetechete in a different name. Right now HRDC/MYP is obsessed with persecuting DPP akuti zinazi alibe nazo attend as long as it’s not their enemy, DPP. But ‘izo okheee’!!
Prof. Danwood Chirwa ndiinu akatundu omanga ndi mawaya, mumatiimilira! At first, I had the impression that he is one of the so called “experts or social commentators” usually quoted by our media that either spew rubbish or are plain hand-clappers for some politicians or political parties. The guy has proved to mean ‘just good’ for Malawi. He speaks it as it is without fear or favour unlike the others that have now become irrelevant for their biased, ridiculous and unprofessional analyses/comments on public issues. Bravo Danwood, we want more professors like you to enlighten us on complicated matters like these for us to judge leaders fairly.
a very broken country which has no hope of healing anytime soon.This is just a starter.The main course is still to come.
In Law we look at proximity of the case,and cost so if you look at this case guys Lets not talk of it.We Malawian wanted change because alot of things were Going wrong.Billions of kwacha’s were just individue cash cows,and again impunity,cashgates,nepotism on employment,lack of justice just to mention a few.Change on the other side is not cheap,you either pay with your life or more cost like it has happened.so please this is what we wanted to be rebalised…….please stop un neccessary alarms this is the price of poor decisions of DPP
Very shameless thinking. So u folks are already intoxicated and cant reason properly.
You must be a beneficiary
Iwe nde mbuzi yeniyeni. Chitsiru kwabasi. Wandinyasa heavy unakakhala pafupi mbama yokha nkanakugaira
This is totally stupid. Danwood Chirwa just come back to Malawi and make the noise while here. Malawi was rescue from the jaws of predators of democracy and these are MEC and led by the most wicked woman in Malawi Jane Ansah and the old idiot who married a harlot Peter Muthalika. This is the cost and we celebrated victory and please just keep quiet. DPP did not want 50%+1 and we have it. We had a very clean Fresh Presidential Elections. We cleared the rubble. We disinfected dpp and their cadets. They are now in Guantanamo Bay self quarantine detention. APM can no longer crush us with his tonnes of bricks. APM was the biggest threat to democracy. So just keep quiet. We know how tough life is in a foreign country. Just come back and practice law here in Malawi. There are a lot of cases pending for dpp thieves and you can cash on this as well Danwood.
You are just immaturely irrational and sound bitter to the truth spoken by Danwood. Get used man, this is democracy! People will still pick out wrongs to right our democracy and you have no capacity to shut the up even if you re-introduce your one party dictatorship. Get a life.
Galu wachanechabe iwe eti. Kuganiza ngati nkhuku. U mean u cant see umbava wachitika apapa
You are missing the point. This is a mafia racket comprising the judges, Chakwera and Chilima stealing taxpayers money. Their lawyers said they had joined the case for free. Why are they asking for money?
Chakwera and Chilima have shown that they are corrupt. They will pay a HEAVY price.
society has become wroten and money is all that matters. People who do not recognise that stealing from the nation is stealing from themselves. My mind boggles because a nation which cannot rely on its lawyers because they are corrupt themselves has no anchor!We are in big trouble people! I don’t know how we get out of this! we need to stop cheating ourselves and start leaving!!! or else we will become extinct!!!
Mbwenumbwenu ofuna attention uyu
The professor is saying the truth. There is no justification for this corrupt syndicate of judges, Chakwera, Chilima, their lawyers and loan sharks to defraud the taxpayers. Would the judges have asked Chakwera and Chilima to pay that much money if they had lost the case? Let us love our country. Why should such extortionate amount be paid to these people. Ask yourself.
No wonder the case was won without evidence.it was a coup.it was a get quick rich scheme for the judges.
It is a mafia racket well-organised by the judges, Chakwera and Chilima. They will be punished.
Kkkkkkkkkkkkkkkkkkkkkkkkkkk mwakhaula anyani inu!! Whether you like it or not, 2084 ija mumainena ija, imene ija munalosa zomwe zikuchitikileni inuyo!! I for don’t see the current crop of Malawians to vote for thugs leading DPP and UDF again in the near future!! Ngati MCP inatha zaka over 20, DPP and UDF, ndithudi muyiwale zobweleranso m’mbomaaaaaaaaaaaaaaaa!! Chitipa to NU mufune, musafune izivotela zipani zina osatu obveeeeee wanuuu!! Munya tsabola ndipo musanatiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiii!!
Chakwera is a one term president
As far as I am concerned, we never should have gotten to this point. MEC commissioners should never have been complicit in stealing an election. This is an animal that was created, and now out of hand. So cadets, please look at your contribution to the problem. You started it, someone else finished it, and now you don’t like how it turned out.
No need to tolerate broad day corruption by the judges, Chakwera and Chilima.
Who is this so called Law Processor Danwood Chirwa. Please just stop talking too much about political situation in Malawi, because you’re not residing in Malawi right now. So you don’t know anything that is happening in Malawi right now.
Hand clappers who can’t see that this is a fraud syndicate comprising the judges, Chakwera and Chilima through their lawyers who by the way, said they were to represent them for free.
I could have appreciated greatly if the Prof. had mentioned Jane Ansah and her crew’s arrogance in the whole saga; not the recipients of that arrogance. To a point of hiring Attorney General, thereby compromising his position. Above all, the period taken also matters. Those lawyers could have been handling other equally important matters. The Prof. knows very well how expensive the services of Senior Counsels can be and for all those months. I hope we all know who have put the nation in this costly affair. The South African lawyers for example, did they deserve all that money? It was all due to arrogance, arrogance, arrogance, without end. I rest my case.
Okuba ndi Chakwera, Chilima ndi ma judge. Apangana – agawana ndalama zimennezi. It has nothing to do with Jane Ansah.
Do you accept the fact that Chakwera and Chilima’s lawyers offered their services for free? Did they not know that this would not be a simple case and long to conclude? Why the fees now? Danwood is saying that in any case Mr. Chakwera and Mr. Chilima ought to have paid their lawyers and then claim the costs from the loser, isn’t that fair enough? His next question is; would MCP/UTM lawyers have demanded such astronomical costs from their clients had the court not over-reached to award costs to the lawyers? If you didn’t question how the 50+1% puzzle found itself in the judgement albeit not being part of litigation nor contested in the court, you may never see the cartel to defraud government here.
That money is 12,2 million US dollars when converted. Somebody just millked millions from a thin, underweight, malnourished, sickly, pitiful cow called Malawi. Danwood Chirwa is right, this is daylight robbery and you can see that judges have their share. That fool Sunduzwayo Madise was the first one to support this payment from his Facebook post. Malawi judiciary is rotten, its politicians are greedy hyenas, its lawyers are bloodthirsty mosquitoes. The struggle must continue until justice prevails. We fought for electoral justice, bow we must fight for judicial justice.
Sadly we have the MCP and UDF hordes of ‘See no evil, hear no evil and say no evil’ people. Chakwera and Chilima are defrauding the public coffers and they pretend not to see that this is WRONG. Ordinary people are angry because they know what is happening. Ordinary people do not have taxpayers paying for their lawyers.
DPP paid Muli K11 billion as compensation for the damages to his warehouse worthy K30 million.
DPP Secretary General Greselder Jeffrey sued the government for unlawful imprisonment and was claiming K70 billion. Thought ACB managed to defend this case but all cadets making noise now including Dan Chirwa were quite on this issue.
Malawi is not bloke, we will collect the money that DPP stole from us and pay back our debts including the K7 billion.
So you condone the stealing of taxpayers money. Where is the so-called CHANGE that Chakwera and Chilima preached?
Uwuwu ndiye uchitsiru tikukanawo! Hand-clapping hands and justifying any bullshit by your leaders is what is pulling this country backwards.
A Danwood Chirwa koma mukanakhala inu ndiye mukanasangalala???? Simunamve lawyer wina akuti lawyers are expensive??? They deserve the payment. osapanga jealous poti ndi anzanu ayi…. Where were you when your colleagues were spending sleepless nights to fight the then useless atoorney general Kaphale??/ why couldnt you show up to defend the US??
If we had human rights organizations surely they would have demonstrated against this chamba judgement
Onse ali ku TONSE. Adya nawo zimenezi.
Tranpence ndi mtambo mbolo zawo. Kungotipusisa and they are busy chewing this money. Shameless hyenas
Acb, kuba kwa 10 billion imeneyi osadikila change of government 5 or 10 years from now. deal with it here and now. Don’t wait until chakwera is voted out then you will talk tough, we need you to act now.
Don’t for once think, if its approved by the judiciary then is not theft. No. This 9.7billion is corruption/theft even though it bears seal of the high court of Malawi.
I agree with Prof Danwood. I would add what Judge Mwaungulu said – Chakwera and Chilima were self-interested. They went to court to get power. The state (taxpayers money) should not be used to pay for such self-interests. They should pay for their legal fees themselves.
where is your remorse, you people? don’t you think 9 billion is just too much? we are complaining that there are no medicines in our local hospital yet somebody is being rewarded 9 billion? we don’t milk a dying cow, where is your common sense?
MULLI
I love corruption. Corruption pays. It feeds my family.
Danwood is right. We need to stand up to the Chakwera-Chilima and judges racket.
The mafia runs from Chakwera, Chilima, High court and supreme court judges, petitioners lawyers and MCP & UTM loaners
The K9 billion racket involves judges including Chief Justice, Patemba. Chakwera, Chilima, their lawyers and loan sharks.
An interesting case of immoral Double Benefit. You conduct a case for a client. The client wins the case and rewards you with :
1. A job whose not so small perks will be drawn from the governments Consolidated Fund.
2. While you are enjoying those not so small perks, arrangements are made to pay you billions of Kwachas for, again, a job well done and the billions to again be drawn from the same Consolidated Fund.
Only in Malawi…..
Everyone who questions the volumenous cost of this case is called a cadet. This is pure theft by Chakwera and Chilima and their lawyers and the judiciary is an accomplice.
The k9. 7 billion is an example of white collar crime. Cash madam is being nailed for much less than this so let’s stop this theft unfolding before our own eyes. As taxpayers we no longer need to smile while the public funds are symphoned off. have to stand up for the public money. Seems Each and every government has its greedy mouths to feed and cannot be trusted even the judges or their spokespersons are just as greedy and cannot be trusted where money is at stake.
I think the Tonse Govt needs to tread very, very carefully on this issue. I say so because the party that has to cough the K7bn fee, i.e MEC, is a govt entity. Tread very, very carefully indeed.
Being MEC being a government entity does not mean they should not be paid what they deserve.MCP and UTM fought the battle while not in government and they won before elections and the cost was even said.So where is your argument?Lets not just argue because others are doing so.We must understand first the legal costs in courts.
Amkolo panyapanu ndithu
I don’t trust this professor, zikhale ng’oma vindicated this man. he is just a mere noise maker and a total failure at his home. akubisalira joz
Prof Danwood is right. This money is a racket to be shared by Chakwera, Chilima, the judges, the lawyers and MCP as well as UTM loan sharks. It is people like you are the ones destroying Malawi because you condone the corruption and bad leadership. There is no justification for this money to be given to these TONSE thieves.
We will always be taken for a ride. We are a hopeless nation. We move from one bunch of extortioners to an even more sophisticated and clever set of thievery. That’s our situation.
Danwood don’t be surprised. This was a syndicate by Potani to fleece government of that money. We heard it all that Silungwe and other educated thieves were representing the petetioners for free but Potani had to come in to award them such hefty payment because he knew there was their cut. Agnes Patemba is much part of that conspiracy even the chief justice and that is why he refused to go on leave until the money was paid.
Ya this is the truth like it or not BUT it is thd truth.
MEC own lawyers of Kalekeni Kaphale and Tamanda Chokhotho pocketed a whooping 5 billion kwacha in legal fees which is way more than what the lawyers of Drs Chilima and Chakwera are getting which is roughly 3.5 billion each. If we are to condemn the cost of 3.5 billion then surely we must condemn the cost of 5 billion even more because it is 1.5 billion more than what each petitioner is getting. By the end of the day this cost was supposed to be met by Jane Ansah and a team of her Mafias whom we all know that they deliberately messed up the election.
Do not lie. This is Chakwera and Chilima racket. Ayaluka.
ACB should investigate what you are saying Government employees should not be paid extra to defend Government that was their job.
Join the discussion.But Chakwera Chilima lawyers said they were doing it for free..
I find the Prof quite interesting. Sometimes his arguments seem off-track even to a layman, but most times his arguments are quite logical.
This time Professor Danwood Chirwa is spot on. I’ve really been educated on the finer points of law practice regarding fees. Educate us more, Prof. 📚
Bwana Danwood lawyers in Malawi are crooks and thieves. Not just because of this case but generally. Actually most of the corruption happening in the country is because they are party to it. They are very good friends of anyone able to pay.
Enough of this guy, he should come back home and help the government than making noise on social media always. Educated fools.
How can you defend corruption? Chitani manyazi. Chakwera and Chilima are part of the mafia who with our judges are going to share this money.
Totally agree. This country is TOO broken to be fixed. We now have another group of thieves and an arrogant dictator. All the hope of CHANGE have evaporated in less than a month. Tinalakwa chiyani?
What proportion of our countries annual budget is this? On one case.
At a rate of $500 an hour, this is enough fees for 2,641 man days of 7 hours each. Ten years worth of continue work. As one knows there is no way any senior lawyer would dedicate such time to one case.
This is public money 💰.
But Malawi was too rich to pay Mulli 11 billion and 3 billion….iweso kape eti tamangokhala ndi lock down yakoyo ku Cape town mbuzi
Iwenso ndi mbuli. Those amounts were never paid.
Koma???? Mbatata iwe eti sukuziwa kuteroko bakha
Iwenso Danwood ngati uli concerned about Malawi, come here and help fix this country. Osamango uwauwa kuimeneko.People like you think you are better than the others who are actually doing something for their country. Come and make your noises here
mbava zina izi Tonsealliance yambava