Malawi: Yas Pushes Ombudsman to Probe Malawi's Attorney General Kaphale

17 April 2020

Mzuzu-based civil society organisation, Youth and Society (YAS), has penned Ombudsman Martha Chizuma to probe the conduct of the Attorney General (A-G) Kalekeni Kaphale in relation to the retention of South African lawyers and the attendant expense on public money, as well as payments deemed "illegal" he received from the Malawi Electoral Commission (MEC) for representing it in the Constitutional Court case.

Kaphale: Ansah said that he was getting payment from MEC to represent its case Ombudsman Chizuma: Matter in her office to probe Kajoloweka: We have indeed engaged the Ombudsman to probe

In the letter of complaint to the office of the Ombudsman seen by Nyasa Times, YAS's executive director, Charles Kajoloweka says having abandoned his proper role of advisor to government and public protector of sorts in favour of pushing a 'partisan' agenda through the proxy of MEC in the presidential election case, and having been disqualified by the court, the Attorney General is so compromised.

He says this has put into question "his ability to give impartial legal advice including on the procurement requirements of the law is seriously in question in terms of s.98(6) of the Constitution."

Reads the letter to Ombudsman:"We respectfully invite your office to investigate the matters and provide relevant remedies in the interest of the public."

Kajoloweka says background to the complaint is that in February 2020 the High Court disqualified Malawi government's top law from acting for MEC as Attorney-General in Constitutional Reference No 1 of 2019 - Chilima & Chakwera v Mutharika and Electoral Commission because he abandoned his proper role as Attorney-General and embarked on a partisan escapade while still donning the cloak of his office as A-G.

While so disqualified, he says, Kaphale appears to have acted on behalf of the electoral body or was involved in procuring the services of lawyers from South Africa on public expense and reffered to his letter to the Chief Executive Officer for Umodzi Hotel Limited dated 11th March 2020 .

"Ombudsman, we would like to make the following observations for your enquiry:

Given his disqualification by the Court, kindly probe whether the A-G was justified if at all and in what manner it is possibly regular and proper for him to have continued acting for EC in the procurement of legal services.

In his letter to the CEO for Umodzi Hotel Ltd, he suggests that he only received affirmation from the Director of Public Procurement that the procurement protocols for the South African Lawyers had been completed and successful on 10th March 2020. On the other hand, he states that the lawyers had since already arrived in the country two days prior, on 8th March 2020, which means before he had affirmative clearance for the procurement and before a contract was settled. Hon. Ombudsman, would you kindly probe whether and how this is regular and in compliance with the Public Procurement and Disposal of Public Asset Act.

No open tender for legal services is known to have been floated in respect of the matter in question in terms of s.37, PPDPA Act. Neither does the procurement in question qualify for waiver of open tendering in terms of s.37, PPDPA Act as the subject matter is neither of a sensitive nature nor has a cent to do with national security. Kindly probe if the contrary is true and share the evidence to that effect.

We consider it plainly that the services the A-G had engaged did not also qualify for restricted tender method in terms of s.37(3), PPDPA Act. The service did not also qualify for international competitive bidding in terms of s.37(5) & (6), PPDPA Act. Kindly probe if the contrary is true and share the justification that may have been advanced in support of either of these methods in accordance with the law.

Assuming the A-G employed the single-source method, kindly probe what justifications were supplied in support of this method in terms of s.37(9), PPDPA Act. Kindly also probe if the same was vetted by the Anti-Corruption Bureau in terms of s.37(11), PPDPA Act and share the necessary evidence in that regard.

Further, YA says it has information that on February20, 2020 David Matumika Banda, the director of legal services for MEC prepared and filed skeleton arguments on the appeal for which the foreign legal services had been procured.

Kajoloweka rely on social media reports that the legal services were procured at the sum of USD788 500.00 of public money.

"Assuming once more that the A-G and MEC employed the single-source method of procurement, would you please probe how they may possibly have complied with the requirements of the General Policy of Diligence stipulated under regulation 117 of the Public Procurement Regulations, 2004.

"For the voidance of doubt, reg.117(1)(c) requires that prior to awarding a contract on single-source procurement basis, the procuring entity (which the A-G appears to have acted for) shall ascertain that, among others, the price to be paid to the provider is reasonable. Reg. 117(2) further requires that the procuring entity should conduct a price analysis with a view to that the price to be paid is fair and reasonable. Ombudsman, undoubtedly, you would appreciate that these requirements are to ensure that public money is spent with prudence and probity and, to be clear, not wasted."

Similarly, YAS refers published report in The Nation newspaper edition of 13th March 2020 that the Secretary to the Treasury and the Minister of Finance are unaware of the procurement of legal services fromSouth Africa at public expense.

"Kindly probe in what manner it was proper for the A-G to procure or facilitate the procurement and commit huge public funds in this manner."

The Chief Justice Andrew Nyirenda this week denied admission of the said South African lawyers to represent the EC in an appeal case, rendering the procurement of their services by EC fatal despite being partly or wholly paid.

Furthermore, MEC Chairperson Jane Ansah indicated during a news conference held on March 13, 2020 that the electoral body has been paying the Kaphale fees for handling the case on its behalf.

"Would you please probe this? In the event that he received fees for acting for EC yet as A-G, kindly probe whether this is proper and legal. In the event that it is illegal and improper, we hereby pray that among other curable remedies, the A-G should return the funds to EC immediately.

"While awaiting your probe and curable remedies, we hold the strong view that the conduct of the A-G as a public officer in the above matters was unreasonable, unfair and unjust to the Malawian republic, hence must be probed," concludes the letter.

Ombudsman could not immediately comment on the letter.

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