COMESA Court Of Justice Capture Leaves One With More Questions Than Answers

Comesa Court

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

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

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.

by African Media Agency (AMA) on behalf of
Allen Atanga Anyele.


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Author : ADC Editor

Publish date : 2019-04-15 11:42:36

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