Malawi: Ansah, Muhara, Kaphale Shamed in Ombudsman Report - 'Acted Illegally' On South Africa Lawyers' Deal for Malawi Elections Case

Ombudsman Martha Chizuma on Thursday released a report titled 'Upholding Professionalism,' an investigation that her Office carried out into allegations of abuse of power and other acts of maladministration in the procedure of procuring and engaging South African (SA) lawyers by the Malawi Electoral Commission (MEC) for the presidential election appeal case in which former Attorney General Kalekeni Kaphale, former MEC chairperson Jane Ansah and High Court Judge Lloyd Muhara - all from the legal profession- have been shamed for flouting laws abused power.

The investigation was motivated by a complaint dated 14th April, 2020 lodged by Youth and Society (YAS) - an organisation. led by vibrant activist Charles Kajoloweka.

The YAS complaint alleged various acts of maladministration in the manner in which MEC procured the services of South Africa lawyers Dumisa Buhle Ntsebeza SC and Counsel Elizabeth Makhanani Baloyi-Mere.

In their findings, the Office of the Ombudsman said Kaphale and Ansah, a retired Justice of Appeal of the Malawi Supreme Court of Appeal, abused their powers and breaching procurement laws in connection with the South African lawyers.

Chizuma said the failure by the former AG and former MEC Chairperson to negotiate fees that were reasonable was maladministration.

"The surrendering of the soft copy of the Constitutional Court record by the MEC Chairperson and the former AG to the South Africa lawyers even before the procurement processes had begun was clearly unreasonable and a mockery to the procurement guidelines," said Chizuma.

"The pressure exerted by [Ansah] on the Internal Procurement and Disposal Committee (IPDC) to the extent that they failed to properly deliberate on this procurement and merely rubber stamped the decisions that were made by the MEC Chairperson and the AG was improper.

She said the former AG and MEC Chair "acted illegally" for facilitating the travel of Mboweni Maluleke Inc. A to Malawi and start executing the Retainer Agreement before a 'No Objection' had been received from the Public Procurement and Disposal of Assets (PPDA).

The Ombudsman ordered Kaphale and Ansah to refund in equal amounts K3 155 248 in public funds used to host the South African lawyers through accommodation, beverages and meals at The President's Hotel in Lilongwe.

"This money should be paid back to MEC and proof of payment should be submitted to my office by 28th April 2021," she said.

Further, the Ombudsman also tasked the Judicial Service Commission to review Muhara's attainability as judge following his alleged involvement in the controversy.

The investigation, she said, uncovered that Muhara, while serving as Chief Secretary to the Government, influenced the illegal appointment of board chairperson for PPDA.

The former Chief Secretary "knowingly, deliberately or out of sheer incompetence" facilitated the illegal appointment of private practice lawyer Madalitso M'meta as chairperson of the PPDA board.

The report further uncovered that M'meta ended up playing a critical role in enabling MEC to hire the South African lawyers in disregard of the laws.

"The failure by the PPDA to articulate with certainty what method of procurement was used in this matter was an abrogation of duty.

"The failure by the Board to reconvene and deliberate on the technical report was an abdication of their duty and contrary to the set internal procedures at the PPDA," said the Ombudsman in the report.

M'meta has also been ordered to reimburse K8.7 million in allowances he received between November 2018 and June 2020 as PPDA board chairperson.

Asked for a comment, Ansah said she will only comment on the matter when she reads the report.

Commentator Mike Fiko argued that Ansah "symbolized a dark force that assaulted our democracy" and her continued clung to MEC was not good for Malawi and generations to come.

"The respect, the integrity, the honesty and the adoration that brought Ansah to MEC is all gone. She left MEC weighed with guilt and anger--and that is where her history, the history of Jane Ansah's stay at MEC begins. It will be one a profile in shame."

Kaphale said he has received a copy of the report and was going to read it, saying if he has to make any step, he will comment.

Muhara could not be immediately reached for comment.

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