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| National |
| Three more lawyers to defend police chief |
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by
Zainah Liwanda, 11 April 2005
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14:12:00
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Inspector General of Police, Mary Nangwale has hired three more lawyers to represent her in a case where she is challenging her rejection by Parliament.
Apart from Rex Mapila who obtained an injunction on behalf of Nangwale soon after her confirmation was rejected by Parliament, Innocencia Nkhoma, Rodrick Makono and Ian Malera told presiding judge Ivy Kamanga on Saturday at the High Court in Lilongwe they were asked by Nangwale to defend her.
The three asked Kamanga to adjourn the hearing to a later date arguing that they had been appointed at short notice and were not prepared for submissions. Parliament’s lawyer Kalekeni Kaphale objected to the request, saying the applicant had all the time to prepare.
“Your Lordship, I was only appointed yesterday by the applicant to represent her in this matter. Looking at the time, it has not been possible for me to prepare for this case. Our coming to this court was to seek adjournment to the nearest possible,” said Nkhoma.
Kaphale was not amused, saying: “The matter should have been heard yesterday in the morning. They are saying they are not prepared. Where is fairness? The applicant had all the time but she just wakes up at midnight and starts contacting lawyers. Your Lordship I request that we proceed with the matter to deal with the injunction today.”
Kamanga asked for an adjournment of five minutes before she could make her ruling on whether to continue with the matter or not.
In her ruling, Kamanga argued that Nangwale was notified that the matter would be heard on Friday, adding that had it not been for the impromptu public holiday, the court would have proceeded with the hearing.
“The applicant had notice that the matter would come for hearing on 8th April. Now, the applicant should not have panicked at the last minute. My ruling is that the matter should proceed today and there will be no adjournment,” said Kamanga.
But Mapila argued that Kaphale was not eligible to represent Parliament, saying section 88 of the Constitution gives the Attorney general (AG) powers to represent government and that a person who acts on his behalf should be delegated by the AG.
“Your Lordship a person who acts on behalf of the AG should produce authority to prove that he has been appointed an agent by the AG to act for government. I would like to hear from counsel Kaphale and counsel [Modecai] Msisha whether they have produced such authority. If not, they should not be allowed to continue representing the first respondent,” said Mapila.
In his response, Kaphale said the AG has never questioned their authority, arguing that he addressed Parliament last week on the issue while the AG was listening.
“Now, the schemes of things from the applicant are coming up. It suited the applicant to sue the AG and speaker. Now, the AG has filled a notice to court and we are acting for the other party, speaker of the National Assembly. We have never pretended to be acting for the AG.
“I consider this application, with greatest respect, to be ill-founded in judicial review application as the present matter is, especially when that arm of government is free to choose its counsel. The AG has never questioned our authority to act on behalf of Parliament,” said Kaphale.
But Mapila counter argued that the matter of Kaphale and Msisha representing Parliament was not constitutional, saying although the AG has not raised any objection, it would be breach of the Constitution because Parliament is a branch of government and should be represented by the AG.
He insisted that Kaphale produces a letter of authorisation before the hearing would proceed.
Kamanga adjourned proceedings temporarily to make a ruling on whether Kaphale and Msisha should continue representing Parliament.
In her ruling, she said the interests of the Speaker should be clearly distinguished and that in this case, the AG being an interested party, there is need to identify an independent individual.
“For those reasons, I will allow Mr. Kaphale to represent the Speaker,” ruled Kamanga.
Mapila said the applicants would appeal to Kamanga’s ruling that Kaphale continues representing the speaker of the national assembly.
Kaphale, during submissions said Nangwale is challenging the outcome of the result of her confirmation because nobody seconded the motion.
He said there is no provision in Parliamentary standing orders for secondment and that Parliament has a right to direct its procedures without being questioned by anyone on matters of internal procedure.
He also quashed suggestions from the applicant that some members were interested in the motion which influenced the outcome, saying section 61 of the Constitution on the whether a member has an interest in an issue or not has been left to Parliament to deal with.
“According to the Hansard of that day, there wasn’t any complaint to the Speaker about the interest of some members in the motion. Actually, members in the House need to talk about matters as openly as possible. Freedom of speech in Parliament is a privilege,” he said.
He said 15 members, including leader of government business in the House Yusuf Mwawa and leader of opposition John Tembo, defended her confirmation against three members, namely Joseph Njovuyalema, Berson Lijenda and Clement Stambuli who spoke against her confirmation.
On whether Nangwale was entitled to a hearing before her confirmation, Kaphale argued that there is no provision in the Constitution for her to be heard before she is confirmed.
Kaphale said since its an employment issue, damages would be a remedy since it is not the first time that public officials have lost their appointments, citing the case of the former director of public prosecutions Fahad Assani, Inspector General of Police Joseph Aironi and the fired principal secretaries.
Mapila in his submissions insisted that the applicant had a right to be heard before confirmation, saying Parliament was sitting in its administrative and not law capacity during the confirmation.
He said damages cannot be a remedy because the applicant was not employed as IG and that the Section 2 of the Employment Act does not apply to the police.
The court adjourned to Wednesday 10AM.
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