Malawi Mobile Ltd files appeal on Comesa Court decision:  ‘Judgement and proceedings were tainted’

Malawi Mobile Limited (MML), a private company that sought to establish a mobile phone network, has filed an appeal  against an earlier judgement of the Common Market for Eastern and Southern Africa (Comesa) Court that dismissed its K98 billion compensation claim.

David Kanyenda representing MML: whole judgement and proceedings were tainted

MML, through private practice lawyer David Kanyenda, argues that the appointment of the court’s president judge Lombe Chibesakunda and her sister Sudanese judge El Bashir was not in accordance with its treaty as the two judges are not eligible to be on the panel.

He states thatthe whole judgement and proceedings were tainted and affected by procedural and substantive mistakes of law.

Kanyenda argues  that the appointment of the two judges was void because a person to be appointed should be eligible to be a judge in his or her country of origin.

The two judges were reportedly  retired from the judiciaries in their respective countries of domicile and that they do not fulfil the conditions required for holding of high judicial office.

He said: “Judge president Lombe Chibesakunda and Justice El Bashir are both ineligible for appointment and service as judges in the republics of Zambia and Sudan, respectively, having reached retirement age which is contrary to Article 20(2) of the Comesa Treaty”

Kayenda said the judges were ineligible in that aspect.

“Therefore, they are disqualified from being appointed as COMESA Court judges even if they were shown to be jurists of recognised competence which in any event we submit they are not,” part of the appeal arguments seen by Nyasa Times  reads.

MML  wants the eligibility of the judges to hold office to be determined by an independent and impartial tribunal without the participation of the two judge’s, Mrs Justice Chibesakunda and Mr Justice Bashir.

The company also wants the Council of Ministers to request the Court to give an advisory opinion regarding the eligibility of the impugned judges in terms of Article 32 and that the current members of the appellate division should not participate in this decision.

The appeal follows an April 23 2017 decision of the Appellate Division Court of the Comesa Court which sat in Lusaka, Zambia and threw out MML’s claim against the Malawi Government and Malawi Communications Regulatory Authority (Macra) for illegal termination of a mobile network operator’s contract.

Macra terminated MML’s contract over contractual disagreements that led to a protracted legal battle, which at some point saw the  High Court of Malawi awarding K55 billion compensation to the company. However, the Malawi Supreme Court of Appeal reversed the lower court ruling.

MML was registered as a private company under registration number 6375 at the Office of the Registrar of Companies in Blantyre and a mobile telephone licence, valid for 15 years, was issued to MML on April 19 2002.

The company is owned by three investors—Finanz Capital Management Private Limited of South Africa with 55 percent stake, Finanz Holdings Limited of Mauritius with 35 percent and 3x Telecommunications with 10 percent shareholding.

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