Malawi Mobile ruling next year

Post was last updated: November 9, 2016

The Comesa Court of Justice is expected to sit in February 2017 to decide a case in which Malawi Mobile Limited sued the government and the Malawi Communications Regulatory Authority for an illegal termination of a contract.

The Malawi Government is contesting a ruling given by the First Instance Division of the Comesa Court of Justice which found that it has jurisdiction to hear the case.

Comesa Head of Corporate Communications, Mwangi Gakunga, has confirmed that the Court sat in October and after perusing the case file made the decision for the hearing and ruling on the appeal to be made in February next year.

Malawi Mobile Limited dragged government to the Comesa Court after the Supreme Court reversed a High Court ruling that awarded Malawi Mobile $66 million (at the exchange rate then). MML was seeking to establish a mobile phone company in the country.

The Comesa Court earlier dismissed the preliminary application by the Government of Malawi which contended that Comesa Court lacked jurisdiction to hear the case. The decision was delivered in November 2015.

But government appealed against the ruling in which the First Instance Division of the Comesa Court of Justice found that the regional court has jurisdiction to hear the case.

In an earlier interview, lawyer representing Malawi Mobile, David Kanyenda, said his client’s position is that the decision of the First Instance Division of the Comesa Court will be upheld by the Appellate Division, describing the ruling as correct and sound at law.

Kanyenda said his client is contesting the appeal on two principal grounds that it’s incurably defective for non-compliance with the mandatory procedures and further that it lacks merit.

Kanyenda further described government’s resistance to submit to the jurisdiction of the Comesa Court as baffling considering the importance of the regional court to attain common market objectives and given that Malawi is a signatory to the Comesa Treaty that established the Comesa Court of Justice.

But Attorney General, Kalekeni Kaphale, who is representing government in the case, earlier said questioning a court’s jurisdiction is normal litigation and does not mean that government is disrespecting the mandate of the Comesa Court.

Kaphale could, however, not be drawn to comment on the grounds on which government is basing its appeal.

The Comesa Court of Justice is the judicial organ of Comesa through which member states and other stakeholders can seek redress for any damages or disputes which may arise as a result of the Comesa integration process.

This is the first case from the Malawi Supreme Court to be referred to the Comesa Court of Justice.

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