By Duncan Mlanjira
Attorney General Kalekeni Kaphale has been given 14 days to respond to the office of the Ombudsman on six counts of allegations of abuse of office and other acts of maladministration in the procedures and practices of engaging South African lawyers to represent Malawi Electoral Commission (MEC) in the presidential election case.
This, says Ombudsman Martha Chizuma, is pursuant to section 123 of the Constitution and section 5 of the Ombudsman Act, which gives the mandate to investigate cases of alleged injustice, abuse of power, unfair treatment and unreasonable, unfair and unjust discharge of duty by any public officer.
The same counts have also been served on MEC’s Chief Elections Officer, Sam Alfandika as an appropriate respondent to the complaint under section 6 of the Ombudsman Act as an extension of the investigation into the acts of MEC as the primary procurement entity in the matter.
The allegations are coming from Youth and Society (YAS), which petitioned the Ombudsman on April 14, 2020 on allegations that as Attorney General of the Republic of Malawi, he committed various acts of maladministration in the manner in which he and MEC procured the services of South African lawyers, Senior Counsel Dumisa Buhle Ntsebeza and Counsel Elizabeth Makhanani Baloyi Mere.
The first count of the maladministration is that Kaphale improperly or irregularly in that — despite the Constitutional Court finding that his representing the Electoral Commission in the election case was an abandonment of his role as Attorney General and was disqualified from so acting — he continued to act and or assist MEC by involving himself in the procurement of services of lawyers from South Africa to represent the Commission in the appeal before the Supreme Court of Appeal.
The second count is that Kaphale “breached provisions of the Public Procurement and Disposal of a Public Assets Acts (PPDPA), in particular there was failure to float an open tender for legal services despite the procurement of the legal services in this case not being amenable to a waiver for open tender proceedings”.
“That you also acted illegally in that having opted for the alleged single sourcing method you also deliberately failed to ensure that the Anti-Corruption Bureau vetted this single sourcing as is the requirement under the PPDPA for single source method and any high value procurement such as this one.
“That you acted unreasonably and contrary to the principles of procurement and the required conduct of public officials in procurement, for procuring the said legal services at a sum of USD788,500.00 to be drawn from public funds. It is specifically being mentioned that the said amount is unjustified considering the amount of services to be provided.
“That you acted illegally, improperly and irregularly by bringing the said South African lawyers into the country on 8th March, 2020 before the procurement process had been finalized on 10th March, 2020 as evidenced by your alleged correspondence to Umodzi Hotel dated 11th March, 2020 on the settlement of the lawyers accommodation bills.”
The Ombudsman further says “albeit not directly connected to the above complainant, there is also a further allegation that has been made that you received legal fees from the Electoral Commission for acting for the services you provided when representing the Commission”.
“Allegedly this was indicated by the chairperson of the Electoral Commission during the press briefing conducted on 13th March, 2020.
“This letter, therefore, serves to notify you of the said complaint and to also solicit your comments on the allegations stated above.
“For avoidance of doubt, it is expected that you will provide your comments on the allegations of the legal fees you received from MEC and indeed if the same happened, the legal basis for the same.
“In addition, you will provide your comments on the genesis of the procurement of the legal services, the procedures which were followed and any form of payments that were made during the procurement and engaging on the lawyers and also their legal fees.”
And for Alfandika, the Ombusdman is asking him to provide comments of the legal fees paid to the Attorney General and its legal basis and also on the genesis of the procurement of the foreign legal services, the procedures that were followed and any form of payments that were made during the procurement and engaging on the lawyers and any form of payment.
“In doing so I shall expect that you will clearly spell out the roles that your institution played and the particular officer who played the said role and also the role Attorney General played in the procurement of the South African lawyers.”
The Ombudsman also requests from Alfandika to provide evidence of all payments of legal fees made in relation to the election case to date and also the fully executed copy of contract that was entered into with Mboweni Maluleke Attorneys of South Africa.
When the issue of MEC engaging the South African lawyers and the staggering fees they were expected to pay at over K600 million, chairperson Ansah defended the decision, saying “democracy is not cheap”.
She said this at the National Elections Consultative Forum (NECOF) meeting in Blantyre on March 13 where she also revealed that “they are the same costs the Attorney General [Kalekeni Kaphale] was getting when he was representing the Commission in the case”.
The foreign lawyers were, however, barred from taking part in the case by the Supreme Court after the Court.
Reports indicated that the South African lawyers were already half of the legal costs — K300 million for work not done.
Meanwhile, Kaphale and Ansah were appearing before Parliament’s Legal Affairs Committee on Thursday over a new date for the fresh presidential elections.
Soon after the ruling of the Constitutional Court on February 3, MEC proposed the fresh presidential elections should take place on July 2 but after the Supreme Court of Appeal ordered that only those that registered for the 2019 tripartite elections are the only ones to vote for the fresh polls, MEC suggested that Parliament should consider moving it to June 23.