The High Court in Lilongwe has ordered the Malawi Electoral Commission (Mec) to pay President Lazarus Chakwera and his Vice President Saulos Chilima a total of slightly over K7 billion as costs in the landmark presidential election case.
In the assessment done by Registrar of the High Court and Supreme Court of Appeal Agnes Patemba, Chilima has been awarded K2,314,184,550 while Chakwera has been given K3,086,203,890 in relation to the Constitutional Court case.
Chilima had initially demanded K2,598,965,916.16 while Chakwera had demanded K6,260,637,526.85.
In the appeal case, whose judgement was delivered on May 8, 2020, the court has awarded Chilima and Chakwera K877,760,000.00 and K726,463,920.00, respectively, bringing the total cost of both constitutional and appeal cases to K7,004,612,360.
According to a legal expert who opted for anonymity, the costs that the court has assessed are party and party costs
“Unlike lawyer and client costs party and party costs belong to the winning party and not the laywers,” he said.
In her separate rulings delivered Monday, Patemba said the sums have been reached at considering arguments presented from both sides of the two cases.
Whilst agreeing with the Supreme Court’s judgement that the number of lawyers engaged by Chakwera and Chilima were unnecessarily many, Patemba assessed and granted the sums at a 100 percent on grounds of professional handling of the matter.
“In my view if the Legislature meant to exclude care and conduct, they would have specifically mentioned it under the Civil Procedure Rule. I shall allow care and conduct in this bill… The present case was burdensome, difficult and complex. This court would grant it at 100 percent,” reads part of the assessment.
According to Patemba, the orders have been made with regard to costs that were reasonably incurred and time spent by petitioners throughout the hearing and also during the appeal of the case.
Mec, which was the second respondent at the Constitutional Court and second appellant at the Supreme Court, has been given up to 30 and 45 days, weekends included, respectively, to honour the two judgments.
Asked on whether the electoral body is solvent to honour the judgements, Director of Legal Affairs at Mec, David Matumika Banda, said they will wait for formal advice from Tamando Chokhotho, the lawyer who represented them in the case.
“We were being represented by Chokhotho, so we will wait to be advised on what options we have as a commission. So it is somehow early to start tackling the issue of whether we are liquid enough or not,” he said.
Chokhotho’s phone went unanswered on several attempts.
But Dean of Legal Studies at Chancellor College Sunduzwayo Madise opined Monday that under other circumstances the costs are supposed to be borne by former Mec Chairperson Jane Ansah and her team of commissioners.
“It is infuriating because it is their stubbornness that is costing us billions of kwacha now. For instance, in the Supreme Court, Mec was not supposed to appeal and Ansah knew that because they were not an aggrieved party, but they went ahead and further hired lawyers from South Africa. Imagine what all that money would have done in the health or academic sectors,” Madise queried.
One of lawyers that represented both Chilima and Chakwera in the case Wesley Mwafulirwa has hailed the order.
The two successfully challenged the May 19 presidential election results in court after citing widespread and systematic irregularities. The High Court, which heard the petition as a constitutional referral, nullified the results and ordered a fresh election within 150 days from February 3 when it delivered its judgement which was later upheld by the Supreme Court.
Following the judgements, Malawians went to the fresh election on June 23 this year and voted for the pair of Chakwera and Chilima who represented the Tonse Alliance, beating then-president Peter Mutharika of the Democratic Progressive Party and United Democratic Front Alliance.