SENIOR COUNSEL'S RATE

The Attorney General made a foreign mining company seeking a mining concession pay $ 180,000 for a legal opinion produced by a private company he single-handedly sourced. Then allegations surfaced that $80,000 (some 138 million kwacha) received from the mining company went missing. 

Attorney General Thabo Nyirenda (IMAGE SOURCE: INTERNET)

GOLDEN MATONGA 

Without involving any other official in government, Attorney General Thabo Nyirenda, single-handedly, pushed Mkango Resources Limited – a company seeking a contract with the Malawi government to operate a major mining venture - to hire an international law firm to review a  Mining Development Agreement (MDA) between Malawi and the company.

The Attorney General negotiated terms for the legal consultancy on behalf of the private law firm, while blindsiding officials at the Ministry of Justice, only for the investor to later query the Malawi government how some $80 000 (some 138 million kwacha) of the agreed fees for the consultancy could not be accounted for.

A cache of documents obtained by the Platform for Investigative Journalism (PIJ) further details the oversized role played by the Attorney General in securing the services of London-based legal firms to review a draft mining development agreement between the Malawi  Government and Mkango Resources Limited.

In an interview with PIJ, the Attorney General acknowledged his role which he defends as wholly legal, and said he had no idea how the money from Mkango Resources Limited was deposited into the law firm of the contracted lawyers. He further claims that the procurement process was legal because the hired UK firms were already on the vendors' list of the Ministry of Justice.

But sources within the government dispute the version and challenge the Attorney General to produce evidence of where money deposits were made. 

According to one senior government official, the matter came to a head when Mkango officials (names withheld) complained directly in a meeting.  

The company representatives revealed during talks with the Government Negotiating Unit in the presence of the Deputy Chief Secretary to the Government Janet Banda, who also heads the Presidential Delivery Unit (PDU), and Solicitor General and Secretary to Justice, Allison M’bang’ombe, that the company was asked to pay $180 000 dollars but only shown a receipt for $100 000 with $80 000 (some 138 million kwacha) presumed missing.

According to sources close to the matter, when the Solicitor General asked the AG for an update on the matter, the AG reportedly, allegedly,  informed the Solicitor General that the $80 000 was paid to a local firm that supported the operations of the international firm that was hired. 

When PIJ asked the AG about any payments to a local law firm, the AG said his office was not aware if any law firm was involved in the matter or received any payment. 

The Attorney General asked PIJ to ask UK law firms Trinity and Omnia Strategy, about any questions about the payments. (PIJ questions to both Mkango, Omnia, and Trinity over the matter have not been answered).

(The PIJ requested the office of the Attorney General and Solicitor General to release documentation proving the payments for the lawyers but the request was not met as we went to press.)

AG’s oversized role 

Despite the Attorney General denying all wrongdoing, sources close to the matter say the matter has raised consternation within the government amid fears of abuse of office on the part of the Attorney General. 

In January 2023, the Platform for Investigative Journalism (PIJ) raised alarm over a proposition by the Malawi government to hire international lawyers to review a mining agreement with a foreign firm interested in investing in Malawi’s fledgling mining industry. 

The lawyers, our article revealed, would be paid by the very same companies, including Mkango Resources Limited, that want to sign mining agreements with the Malawi government. As argued by mining governance experts then, the prospect raised a conflict of interest on the part of the law firms to be hired. The credibility of their review also came into question.

But unbeknown then is the role of the Attorney General in proposing, facilitating, and negotiating the arrangement. Evidence shows the Attorney General traveling to the UK to facilitate the matter with Mkango Resources Limited, meeting officials in Malawi, and writing letters suggesting the legal fees, among others. 

While the lawyers are purportedly hired on behalf of the Malawi government, the Solicitor General and Internal Procurement Committee of the Ministry of Justice were not informed of all the dealings, and various sources familiar with the matter were confided further in PIJ.

On the 30th of September 2022, the Attorney General wrote to the President of Mkango Resources Limited following a meeting held the previous Wednesday in London at the Malawi High Commissioner’s office, according to the documents sourced by PIJ on the matter. 

The Attorney General proposed in the letter that the company pay $ 350,000 to London-based lawyers the government would hire.

“The finalization of this MDA is a priority for Malawi. This is because mineral resources are an important element of Malawi's sovereign wealth. The resumption of mining activities will create jobs and increase the sector's contribution to the country's GDP,” wrote the Attorney General. 

 “To ensure that the MDA is well-balanced and addresses the interests of both Mkango and Malawi, the Government has decided to instruct a team of mining-sector-focused, transactional lawyers from a London-based law firm to review and analyse the terms of the MDA, as well as advise Malawi during the negotiations ("Malawi's Independent MDA Review"),” he added.

The Attorney General said in the letter Malawi's Independent MDA Review will cover the legal, tax, technical, and financial aspects of the MDA but said a review should be done by a law firm to be identified by Malawi.

“We estimate that the costs of such a review will be at most circa. USD 350,000 (excluding VAT and disbursements). Malawi does not have the financial resources readily available to cover the above-mentioned costs. Therefore, the Government hereby seeks a written undertaking from Mkango that the latter agrees to cover the costs of Malawi's Independent MDA Review. Such undertaking will ensure that Malawi's Independent MDA Review commences as soon as possible and in turn that the MDA is entered into without any further delay. We thank you,” reads the letter.

Subsequent correspondence between the AG and the company, seen by the PIJ, suggests that the company was uncomfortable paying the whole amount. 

A leaked 11 October 2022 letter from one of Mkango’s representatives, proposed to the Attorney General that the Government should allow the company to find a cheaper law firm on its own that would charge $ 31,000 for a similar amount of work.  

“Also the high costs of 350 000 USD legal fees is a major concern for us as we are a junior mining development company, as discussed during the meeting and if the government of Malawi is willing and able to get this MDA legal review funded from the Africa Development Bank, this would potentially add many months of further delay to the mining going forward. We believe we may have found a possible solution with the international law firm Gowling WLG, who has an office in London,” reads one of the emails, from a Mkango representative.

On 9th March 2023, the Attorney General,  Mrs. Dominga Chiotha Opio, and Gustave Kaliwo, a local lawyer representing the interests of Mkangom met at Ku Chawe Inn in Zomba and discussed the matter again. (Attempts to speak to Mr Kaliwo proved futile.)

Sources, both at the Ministry of Mining and the Ministry of Justice, point to the absence of other officials from both ministries as suspicious.

Mrs Janet Banda, the Head of the Presidential Delivery Unit (PDU) identified by our sources to have also received a complaint from Mkango Resources, simply responded to our questions: “No comment.” 

The Solicitor General and Secretary for Justice, Alison M’bang’ombe, confirmed in a written response to PIJ that his office was never informed about the procurement of the lawyers. 

“As Solicitor General, I was not aware but it may be because I had not yet joined the negotiating team, I learned about this later,” said M’bang’ombe. 

Quizzed on which bank accounts received payments from Mkango Resources Limited, the Solicitor General said the AG was best placed to respond to such questions.

Many gray areas 

While the PIJ could not immediately source the final agreement on the procurement sources say the law firm that was paid eventually was Omnia Strategy, a London-based international law firm that says it specializes in dispute prevention and resolution around the globe and counts Cherie Blair –wife to former UK Prime Minister Tony Blair–as Co-Founder and Chairperson.

Law firm for Cherie Blair, wife to former UK Prime Minister was also reportedly paid (IMAGE SOURCE: INTERNET)

The Attorney General mentioned in an interview with PIJ he was aware two companies, Omnia Strategy and Trinity, both law firms based in London, were hired. 

He denied the alleged conversations in which he said a local law firm was paid the unaccounted-for $ 80,000, insisting the money was never transferred through him, nor does he know how the payments were made.

The Attorney General further defended the procurement as legally sound, saying while admitting the Ministry of Justice’s Internal Procurement Committee and the Solicitor General (who is also the Principal Secretary to the Ministry of Justice) were not involved in the procurement, the law firms that were eventually hired were already on the preselected vendor list of the Ministry of Justice which is approved by the PPDA. 

“No payments came to me,” he said in an interview,  “I can confirm that a London law firm was engaged to advise on the MDA at no cost to the Malawi Government. All Legal processes were complied with. Thank you,” said Nyirenda.

But sources queried the explanation. One source points out that both the Ministry of Justice and the Ministry of Mining have seasoned lawyers who are experienced in analyzing such agreements, in the first place.

The development comes as negotiations continue between Malawi Government and Mkango over a Mining Development Agreement that would allow Mkango to conduct the Songwe Hill rare earth project–a mining project in Phalombe where deposits of rare earth, uranium, tantalum, niobium, rutile, nickel, and cobalt–some of the precious mineral wealth were discovered. 

Malawi, which is struggling to diversify its economy, seeks to tap into such mineral wealth with its sole major mining venture, the Kayelekera Uranium mine, still on suspension.