By Draxon Maloya
One of the civil rights organisations, Youth and Society (YAS) has written the office of the Ombudsman to probe the Attorney General for his continued involvement in procurement of legal services for the embattled Malawi Electoral Commission (MEC) which is in bleach of the February 3rd, 2020 Constitutional Court ruling.
In a letter addressed to the office of the Ombudsman signed by YAS’s Executive Director, Charles Kajoloweka highlighted a number of areas which clearly shows that the AG flouted a number of procedures while at the same time acted contemptuously to the Constitutional Court ruling that he should not in anyway be involved in the matter in which the MEC is fighting its legal battles.
The letter also request the Ombudsman to make a determination in the wakes of Kaphale’s involvement in securing the services of the South African lawyers without a proper tendering procedure considering that they were paid using taxpayers money.
And here below is an attachment of the letter which the office of the Ombudsman has confirmed to have received on Wednesday afternoon.
Att: Rt. Hon. Martha Chizuma
Dear Rt.Hon. Ombudsman,
COMPLAINT AGAINST THE ATTORNEY GENERAL (HON. KALEKENI KAPHALE) ON THE RETENTION OF SOUTH AFRICAN LAWYERS AND THE ATTENDANT OBSCENE EXPENSE ON PUBLIC MONEY
Madam, on behalf of the Youth and Society (YAS), a duly registered human rights and governance watchdog, and concerned citizens (the ultimate source of all state power), I write your high office in terms of Sections 5 and 7 of the Ombudsman Act, 1996 to lay a complaint against the Attorney General, Hon. Kalekeni Kaphale on his professional conduct as a public officer in relation to the retention of South African lawyers and the attendant expense on public money, as well as illegal payments he received from the Electoral Commission for representing it in the Constitutional Court case. We respectfully invite your office to investigate the matters and provide relevant remedies in the interest of the public.
The relevant background to the complaint below is that in February 2020 the High Court disqualified the Attorney General from acting for the Electoral Commission as Attorney-General in Constitutional Reference No 1 of 2019 – Chilima & Chakwera v Mutharika & 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 appears to have acted on behalf of Electoral Commission or was involved in procuring the services of lawyers from South Africa on public expense. His letter to the Chief Executive Officer for Umodzi Hotel Limited dated 11th March 2020 refers.
Hon. 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, we have information that on 20 February 2020 Mr. David Matumika Banda, the Director of Legal Services for EC prepared and filed skeleton arguments on the appeal for which the foreign legal services had been procured. We are aware that the appeal has since been scheduled for hearing on 15th April 2020 which suggests that all the key procedures have been satisfied at this juncture. With that in mind, information floating on social media indicates that the legal services are being procured at the whooping and obscene sum of USD788,500.00 of public money. Assuming once more that the A-G and EC 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, it was published in “The Nation” edition of 13th March 2020 that the Secretary to the
Treasury and the Minister of Finance are unaware of the procurement of legal services from
South 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.
- On 13th April 2010, the Supreme Court 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, the EC Chairperson Dr. Jane Ansah indicated during a press conference held on Friday 13th March 2020 that EC has been paying the A-G 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. 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 EC in the presidential election case, and having been disqualified by the court, the A-G is so compromised in the exercise of his duties to the extent that 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.
Ombudsman, we should appreciate seeing your good office acting on this complaint promptly.