Section 25 (1) of the Legal Education and Legal Practitioners Act (2018) gives the Chief Justice the power and authority to admit to practice, as a legal practitioner for the purpose of a specific cause or matter, any foreign lawyer(s) [lead as expatriate lawyer(s)].
Section 24 of this Act lays down the formalities that are to be followed and/or satisfied for anyone who has obtained his law qualification as a legal practitioner from any other country than Malawi. Among such formalities is what is prescribed at subsections (1) and (2) of the said section (24) which requires of such a foreign legal practitioner from a permissible jurisdiction to make an application and address such an application, alongside an affidavit, to the Chief Justice, who shall make a determination upon consultation with the Malawi Council of Legal Education. There is a (90) days timeframe involved in this process.
However, the Chief Justice is given the mandate, under section 25 of the Act to jump this formality ESPECIALLY WHERE the applicant legal practitioner is making such an application for a specific cause or matter. The Chief Justice is, in this incident, given the latitude to use his opinion to determine whether the applicant meets the admissible or admission criteria which, apart from being a legal practitioner from his/her country of origin, is adjudged to be of good character [see paragraph (b) of section 25(1)]; has come to Malawi for purpose of appearing in the specific cause or matter [see paragraph (c) of section 25(1)]; and has paid relevant fees and/or contribution [see paragraphs (d) and (e) of the same section 25(1)].
Without doubt, if the expatriate lawyers from South Africa are confirmed to represent their client (herein the Electoral Commission), it would mean that the Chief Justice has, or will have, used the discretion of skipping or putting aside the formalities and that his mind has been satisfied that the practitioners in question meet or have met the residual criteria.
However, all of the above should not form any concern and surely should not have formed an issue to dominate this post. It is worthy highlighting, therefore, that the rationale of laboring myself with the dissemination of the above information was to hold down any curiosity-bred questions of why involving expatriate lawyers yet there are plenty of lawyers capable of servicing MEC as a client.
I should be so quick to opine, and indicate the same, that the engagement of these expatriate lawyers has no better explanation than desperateness of MEC following the judicial declaration (inspired by policy considerations) that the Attorney General (who was the lead counsel for MEC in the matter) should recuse himself from the case going forward. Given that ordeal, MEC is left with such other counsels who are incapable of making inspiring arguments. By extension, it would mean that MEC, upon exploring the local market of counsels, does not see, and/or has not seen, a capable and willing substitute(s) for the Attorney General. This, according to me, is an insult to our indigenous counsels who are as industrious and capable. But it is such an insult that cannot be confronted without sounding awkward and detrimental to the freedom, right and choice each client is endowed with. It is on that basis that we are, and all of us should be, willing to let MEC choose its client from wherever.
While MEC enjoys that freedom and right, surely it has a burden of duty to explain and justify the expenditures related to such adventures. This is particularly so because MEC is a public body operating on public funds under public law. This, therefore, does not leave MEC with a blank cheque to treat itself as it deems fit.
I must emphasize that these expatriate lawyers are not bringing any magic. They are not bringing new law. Neither are they bringing, with them, newly-manufactured evidence exported from their land or from wherever for the purpose of turning the tables upside down. If anything, they risk bringing ignorance on the facts and on some indigenous law. I can also proceed to tell that all they are bringing is false confidence upon their client while set to return with heavy pockets and smiles leaving their client in unattended agony of supreme (and final) loss.
Come back to this post after the Supreme Court’s disposal of the case.