Ansah, Kaphale ordered to pay K3.1 million over SA lawyers hiring debacle

Former Malawi Electoral Commission (MEC) chairperson Jane Ansah and former Attorney Kalekeni Kaphale have been ordered to pay back K3.1 million which was spent on South African lawyers MEC hired last year.

Ombudsman Martha Chizuma has issued the order today in a report titled Upholding the profession: An investigation into the alleged acts of abuse of power and other acts of maladministration in the procedure of procuring and engaging South African lawyers by the former Attorney General and the Malawi Electoral Commission.

MEC under Ansah hired Mboweni Maluleke Inc Attorneys at an agreed fee of US$788, 500 (about K600 million) to represent the commission in the presidential elections appeal case last year.

They agreed that 50 percent of the fee was payable in advance on or before 13 March, 2020 and the 50 percent was payable to the lawyers upon finalization of the appeal case.

In a letter dated 11 March, 2020 Kaphale confirmed that four lawyers had arrived in the country on March 8 and he asked Umodzi Park to allow the lawyers stay at the Presidential Hotel and pay after completion of procurement process.

The lawyers in the end failed to represent MEC as they were rejected by the Chief Justice.

In her report today, Chizuma said Kachale and Ansah should personally pay back the money MEC pay for the lawyers’ stay the hotel since the money was paid before procurement process for the lawyers had been completed.

“But for the former AG Mr. Kalekeni Kaphale, SC and former MEC Chairperson Justice Jane Ansah (rtd) abusing their powers and breaching procurement laws, the SA lawyers would not have come to Malawi.

“I thus direct that the former AG and former MEC Chair should refund in equal amounts K3,155,248 which is the Malawi public funds money that was expended on the SA lawyers through accommodation, beverages and meals at BICC Umodzi Park hotel for the period the lawyers were in the country. This money should be paid back to MEC and proof of payment should be submitted to my Office by 28th April 2021,” said Chizuma.

She also faulted MEC and Kaphale for falling to negotiate the legal fees of the South African lawyers, saying US$788,500 was more than half of the reasonable figure of about US$367,567.

Chizuma, however, said findings show that MEC did not pay any money in legal fees to the South Africa lawyers.

“It is my finding that nothing was paid by Malawi Government to the SA lawyers as legal fees pursuant to the Retainer Agreement following their non-admission by the Malawi Courts,” said Chizuma.

In the Presidential Elections Appeal case, MEC was represented by lawyer Tamando Chokhotho. The commission lost the case as the court maintained the High Court’s decision to nullify the 2019 presidential elections and order for fresh presidential elections.

Lazarus Chakwera and Saulos Chilima – currently President and Vice President of Malawi respectively – won the elections case and their lawyers were awarded over K5 billion in legal fees.