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Government contests Comesa court ruling

The Malawi Government will appeal against a ruling in which the First Instance Division of the Comesa Court of Justice found that the regional court has jurisdiction to hear a case in which Malawi Mobile Limited (MML) sued the government and the Malawi Communications Regulatory Authority for an illegal termination of a contract.

Comesa Head of Corporate Communications, Mwangi Gakunga, has confirmed that the Appellate Division of the Comesa Court will sit in October this year to determine the case.

The court earlier dismissed the preliminary application by the Government of Malawi which contended that Comesa Court lacked jurisdiction to hear the case.

The decision was delivered in November 2015 and David Kanyenda of Makiyi and Kanyenda, who is representing Malawi Mobile in the case, said his client’s position is that the decision of the First Instance Division (FID) of the Comesa Court is correct and sound at law, therefore, it ought to be upheld by the Appellate Division.

Kanyenda said MML is contesting the appeal on two principal grounds that it’s incurably defective for non-compliance with the mandatory procedures and further that it lacks merit.

“Needless to say the Comesa Court is an indispensable organ towards deepening of regional integration. Government’s resistance to submit to the jurisdiction of the Comesa Court is, therefore, baffling given the importance of the regional court to attain common market objectives and given that Malawi is a signatory to the Comesa Treaty that established the Comesa Court of Justice,” Kanyenda said when we contacted him.

But the Attorney General, Kalekeni Kaphale, who is representing government in the case, said questioning a court’s jurisdiction is normal litigation and does not mean that government is disrespecting the mandate of the Comesa Court.

“Our application does not mean that we are disrespecting the regional court because had it been otherwise, we would be facing contempt of court but no motion has been pushed that we are in contempt of court,” Kaphale said.

Kaphale could, however, not be drawn to comment on the grounds on which government is basing its appeal.

This is the first case from the Malawi Supreme Court to be referred to the Comesa Court and according to Kanyenda, the landmark nature of the decision of the FID lies in the fact that it flies in the face of conventional legal thinking to the effect that decisions of the Supreme Court are final and unassailable.

“Apex courts in the common market can no longer be regarded as final arbiters of legal disputes,” Kanyenda said.

The Malawi Mobile Limited dragged government to the Comesa Court after the Malawi Supreme Court of appeal reversed a High Court ruling that awarded MML $66 million (at the exchange rate then). MML was seeking to establish a mobile phone company in the country.

The Comesa Court of Justice is the judicial organ of Comesa through which member states and other stakeholders can seek redress for any damages or disputes which may arise as a result of the Comesa integration process.

Chapter five, Articles 19-44, of the Comesa Treaty provides for the establishment and other matters relating to the Comesa Court of Justice. It has jurisdiction to hear all matters arising under the Comesa Treaty in the Comesa region.

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