The Ombudsman Martha Chizuma Thursday faulted former Attorney General Kalekeni Kaphale and former Malawi Electoral Commission (Mec) chairperson Justice Jane Ansah for abusing their powers in the hiring of South African (SA) lawyers to represent the electoral body in the Presidential Election Appeal Case in March last year without following procedures.
Mec wanted to hire Senior Counsel Dumisa Buhle Ntsebeza and Counsel Elizabeth Makhanani Baloyi-Mere of Mboweni Maluleke Inc Attorneys for the appeal case.
Presenting a report on 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, Chizuma also ordered Kaphale and Ansah to pay back, in equal amounts, to Mec a total of K3,155,248 which was the bill that the two SA lawyers incurred at Peermont Hotel in Lilongwe from March 8 to 11 2020.
According to Chizuma, even though the $788,500 fees was not paid to the South African lawyers after the court in Malawi denied their application, it does not mean that the SA lawyers never used any public funds when they were in Malawi.
Chizuma said investigations by her office revealed that, during their stay in Malawi, the lawyers were accommodated at Peermot Hotel, Umodzi Park, adding that, much as the Mec CEO Sam Alufandika told the investigation that he does not know who settled their bill, the inquiry showed that Mec had an active account at the hotel which was in credit and that the hotel deducted a total of K3,155,248 incurred by the lawyers.
“Moreover, the former Attorney General abused his powers and acted contrary to the spirit of the Concourt judgement by engaging himself in the accommodation issues of the SA lawyers at Peermot Hotel and also negotiating downwards the fee to be paid to the SA lawyers after their application for admission to practice had failed and could not represent Mec in the appeal.
“I therefore direct that the former Attorney General and former Mec Chair should refund in equal amounts of K3,155,248 which is the Malawi public funds money that was expended on the SA lawyers through accommodation, beverages and meals at BICC [Bingu International Convention Centre] 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 May 30 2021,” Chizuma said.
She described as illegal the use of single-sourcing method for procuring the services of Mboweni Maluleke Inc Attorneys when the grounds upon which single-sourcing method could be used were not met and before obtaining approval from PPDA to use single-sourcing method.
Chizuma further described the $788,500 (K581,673,453) charged by the SA lawyers as unreasonable.
She said, based on premium rates for lawyers in South Africa, the fair amount for the two lawyers would have been $367,567 and that the $788,500 agreed was more than double the reasonable amount that could have been considered.
The investigation also faulted former PPDA Director General Elias Hausi and his deputy for the way they issued a no-objection in the matter.
“Most of the things they did and or omitted to do revealed high levels of incompetence. Being heads of a body that oversees procurement to date, they could not tell with certainty what procurement method was used in procurement of these lawyers leaving that determination to Mec,” she said.