Govt appeals to Comesa over Malawi Mobile Limited case

The Malawi government has appealed the ruling of the Common Market for Eastern and Southern Africa (COMESA) Court of Justice First Instance Division that found that the COMESA Court has the jurisdiction to hear the case between the Malawi Mobile Limited (MML) , the government and nd Malawi Communications Regulatory Authority (Macra).

Attorney General (AG) Kalekeni Kaphale on 5th June, 2015 filed a preliminary application against the case of MML  asking the COMESA Court to dismiss it,  arguing that  the regional court has no mandate to hear the matter.

But in its ruling on 20th November, 2015 the Court dismissed the application, saying MML did exhaust the local remedies and it fulfilled the requirements of Article 26 of the COMESA Treaty and that the claim comes within the ambit of Article 19 and 23 of the Treaty.

Meanwhile, Attorney General Kaphale and State Attorney Miss Apoche Itimu has filed an application to the upper court of COMESA sitting in Khartoum in Sudan, asking it to nullify the lower court decision and dismiss the case.

Mtambo Recusal

Earlier, MML had filed an application asking one of the panel judge, Justice Dr. Michael Mtambo from Malawi to recuse himself from participating in the appeal before the Appellate Division of the COMESA Court of Justice

MML lawyer David Kanyenda feared that Mtambo was going to be biased because he sold his law firm to him [Kanyenda], and his other business partners before the judge was appointed to the Malawi Bench and an ensuing landlord and tenant relationship between them.

Kanyenda had further argued that Mtambo was going to be a judge in his own case given that he is a member of the Malawi Judiciary and one of the issues was the composition and conduct of the Malawi Supreme Court of Appeal.

But in its ruling the court dismissed the Recusal application citing there’s no evidence adduced by MML why Justice Mtambo would throw away his judicial oath.

It says the judges at COMESA Court serve in their personal capacity and not on behalf of any particular Government yet the judges are appointed with the blessings of their respective Governments of origin.

Conflict of Interest

MML a mobile phone operator licensed in April 2002 but faced political hurdles against rolling out its services in the country lodged an appeal in the Comesa Court, challenging the Supreme Court of Malawis decision that reversed a 2011 High Court order to award the company a $66 million (over K50 billion) compensation for loss of revenue for unlawful cancelling of contract.

Convicted Ralph Kasambara former Attorney General then suspended the Macra board and any resolution made after 24th March, 2005, however his decision was challenged and reversed by the Constitutional court

The Constitutional court noted that Kasambara fraudulently misrepresented the President of Malawi and usurped the president’s powers in terms of the Malawi Telecommunications Act by suspending the board, and ruled that he had no authority to represent the president after he failed to produce authorization letter backing his actions

Kasambara also ordered the arrest of South Africa based MML investor Patroklos Tsaperas, together with lawyer Khuze Kapeta Senior Counsel and former MACRA chairman late Abdul Pillane. They were maliciously charged with four counts.

“The persecution” did not succeed in court as the case was dismissed and thrown out of court.

In the case to COMESA Court, MML is questioning the role that Justice Rezine Mzikamanda played in the delivery of a Supreme Court of Malawi ruling that saved the Malawi Communications Regulatory Authority (MACRA) from paying the company the compensation.

MML in its submission to the COMESA court alleged that Mzikamanda did not form part of the panel.

The Panel that heard the matter at the Supreme Court for appeal was being chaired by Justice Andrew Nyirenda as he was then, Justice Edward Twea and Justice Richard Chinangwa but Justice Mzikamanda illegally participated in the formulation of judgment as he came in to replace Justice Chinangwa on the day of ruling, making it a total of four judges hearing the matter which is unconstitutional.

In his submission MML questions the appointment of Justice Andrew Nyirenda as Chief Justice by the President on 12thmarch, 2015 just two days after he chaired the panel of the judges to deliver his ruling stopping the Malawi Government from compensating the MML as it was directed by the High Court. MML argues that his appointment as Chief Justice was highly suspicious and might come as a reward for a job well done.

MML further raised eyebrows to the involvement of Kaphale who before being appointed Attorney General he was representing Macra and even though he is continuing appearing before the court as Attorney General, his law firm Kalekeni Kaphale Lawyers continued to representing MACRA.

Inevitably conflict of interest prevailed arguing Kaphale ought to have recused himself and refrained from representing the Office of the attorney general personally, instead he would have permitted state advocates in the Attorney General’s chambers to continue representing in the Attorney General as was the case previously

Meanwhile, the COMESA Courts Appellate Division is expected to make its’ ruling on 19th April, 2017 on whether to uphold or reverse  the decision by the First Instance Division which said the Regional court has jurisdiction over the matter

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