The Appellate Division of the COMESA Court of Justice has allededly rigged judgement in favour of the Government of Malawi against Malawi Mobile Ltd, where judges unscrupulously peddled their assistance to litigants to help them achieve undeserved and unfair outcomes. This act of injustice leaves one with more questions than answers, says Allen Atanga Anyele,Director of Operations, TIA Media (Pty) Ltd.
The Court of Justice of the Common Market for Eastern and Southern Africa (COMESA) which claims to be the bastion of regional justice, a protector and guarantor of foreign investment through the provision of fair and equitable justice has proven to be a very deceitful body which is incapable of and/or unwilling to render fair and impartial justice to litigants before its courts in favour of governments.
This so called trusted regional court has just claimed its latest victim. Malawi Mobile Limited (MML), a registered telecommunication company based in Malawi is feeling the pinch of outright injustice and suspicious manipulation and maladministration of justice as corrupt judges are brought in to listen to cases and unfairly tilt judgement in favour of a COMESA member state.
During the appeal hearing at the Appellate Division (AD) of the COMESA Court of Justice held in Sudan in February 2017, the COMESA Court bench constituted of five judges, among whom the chief Justice Lombe Chibesakunda Judge President of the AD and a third judge, a Malawian, had a conflicting interest in the case. These ineligible judges according to documents at our disposal are ineligible to sit as Judges at the COMESA Court of Justice because they neither hold judicial offices in their respective countries of residence (having retired), nor are they jurists of recognised competence.
This is but one act of unfair practice but there’s more. So much more that it warrants the provision of clear answers.
Of the five judges who heard the appeal case, two ineligible judges and one judge ( Malawian, Hon. Justice Dr Michael Mtambo) with conflicting interest were on the bench. They all influenced the decision of the court in a majority fashion which led to the reversal of the FID’s (COMESA court) 2015 decision on jurisdiction. Considering Art. 20 (2), Art. 22(4) and Art.31 (2), one can’t possibly consider the Appellate Division’s decision to revoke the FID’s decision to grant jurisdiction to hear the merits of the MML v the Government of Malawi case a fair, just and lawful process.
Whilst we’ve already established that the process followed was unfair, unjust and unlawful, what remedies and more specifically, what measures will the Secretary General put in place to avoid such corrupt practices to continue at the CCJ?
Whereas, the CCJ’s main mandate among others is to assure the business community and potential investors in the region of protection against any acts that violate guarantees enshrined in the COMESA Treaty relating to regional integration, trade and investments, it is absurd that unabashed injustice perpetrated on MML by the CCJ came just less than a week after a series of alluring sensitisation campaigns led by the CCJ’s Judge President asking “investors to invest in the region with confidence”.
How can COMESA deceitfully encourage foreign investors to choose the COMESA region as a viable destination to invest when one of the key protagonists of MML’s unfair demise is the very ineligible CCJ Judge President? It is hypocritical, confusing and insulting to businesses like MML and many others like it whose only goal is to establish an active economy in the region.
An ongoing battle
In 2005, MML sued the Malawi Government and its communications regulatory body, Malawi Communication Regulatory Authority (MACRA) for unlawfully revoking its license on the grounds that the company had failed to fulfil its obligations under an agreement entered into, between the two parties in 2002.
According to this Agreement, MML was required to roll out public mobile radio telephone services within a given time frame. The Government of Malawi and MACR|A deemed that MML failed to uphold its parts of the bargain and revoked MML’s operating license. MML felt aggrieved by the revocation of its operator’s license and sued the Government of Malawi and Macra for USD 133,700,000.00.
The decision to revoke the license of MML was made at the instance of former Attorney General and recently convicted criminal, Ralph Kasambara for attempted murder and currently serving a 12-year custodial sentence. The revocation of MML’s license by Kasambara was found to be unlawful and unconstitutional by the Constitutional Court of Malawi which confirmed that the acts of the Malawi Government to terminate the license were motivated by capricious and arbitrary considerations. Hence Kasambara’s action was considered unlawful and ultra vires. To date the decision of the Constitutional Court remains valid showing that MML license was truly terminated through unlawful interference by convicted former Attorney General Kasambara.
The case was heard in the Commercial division of the High Court of Malawi wherein the High Court ruled in favour of MML in respect of loss of profit to the amount of USD 66,850.000 plus interest and costs of the suit. This was from an initial MML claim of USD133, 700,000.00 However, the Government and MACRA appealed the judgement in the Malawi Supreme Court of Appeal (MSCA). The latter court set aside the judgment of the High Court’s Commercial Division after three years of waiting due to the corrupt current Attorney General, Kalekani Kaphala, whom is known to be the master of shopping of judges.
It is baffling for companies like MML – an active agent of economic progress – and many others like it to encounter such injustice. All these questions should prompt us to think that as much as COMESA like to believe it is doing its best, the contrary is true. And that the remnants of what it once represented is now overshadowed by these blatant and unapologetic actions.
Distributed by African Media Agency (AMA) on behalf of Allen Atanga Anyele.