President Peter Mutharika on Friday filed amended notice of appeal to the Malawi Supreme Court of Appeal challenging the Constitutional Court (ConCourt) judgement that nullified the May 21 2019 presidential election.
In the amended notice, the President has lodged 17 grounds of appeal, one short of the previous notice of appeal filed on February 7 2020 to the Supreme Court.
The amended notice of appeal has seen Mutharika’s lawyers removing four grounds from the previous notice, replacing them with three new grounds.
Among the new grounds filed by Messrs Mbeta and Company are that the five learned judges erred in law in abandoning settled principles of law governing the annulment of a disputed election or effect of an irregularity on the overall result of an election.
The appeal cites LovenessGondwe versus Malawi Electoral Commission (MEC) and Catherine GotaniNyahara, of 2005, Bentley Namasasu versus Ulemu Msungama and MEC of 2016 among others cases as examples.
Reads grounds 15 and 16: “The learned judges erred in law and in fact by failing to take into account in their findings the responses given by witnesses for the petitioners/respondents during cross-examination by the 1st appellant on all the issues pleaded and identified in the petitions, and thereby showed gross bias in favour of the petitioners/respondents and against the 1st appellant.
“The learned judges, having misdirected themselves on the issues set out in the grounds 1-16 above, erred in law and in fact in holding that the 2nd Appellant breached Sections 40(3); 76(2)(d) and 77(5) of the Constitution of the Republic of Malawi, thereby making an unjustifiable order annulling results of the presidential election of May, 2019.”
In an interview yesterday, one of Mutharika lawyers, Frank Mbeta confirmed filing the amended notice of appeal on Friday. He said what remains is for the Judiciary to compile all the records and share all
the parties and Supreme Court judges.
He said: “What we were supposed to do was to file our state of argument on the appeal. We were also supposed to state records of appeal, that all has been done. What it means is that the court must now compile the records of appeal and then share with the parties and Supreme Court judges.
“At that point, that’s when the court appoints a date of hearing of the appeal. But meanwhile, from Friday, the respondents, in this case the petitioners, have 14 days within which to file their state on argument as well.”
In a separate interview, one of MEC lawyers TamandoChokotho declined to comment on whether the electoral body has also filed an appeal, saying his client had not granted him permission to speak to the press.
Mutharika, who was the first respondent in the case, maintained the 14 grounds from the first notice of appeal, among them that ConCourt erred in the law in holding that during the 2019 presidential election, there was an undue election of Mutharika as President and that five judges erred in the law in finding that in the return and election of Mutharika to the office of President, there were irregularities, without regard to the law on the irregularities.
The five-judge panel comprising Healey Potani, RedsonKapindu, Ivy Kamanga, Mike Tembo and DingiswayoMadiseon February 3 2020 nullified the presidential election in the May 21 2019 Tripartite Elections and directed that a fresh election be held within 150 days from February 3 2020.
The court said MEC (second respondent) failed in all constitutional tests it set out on the elections and that the irregularities were so glaring that the credibility of the election was in question.
Two of the presidential candidates in the May 21 2019 Tripartite Elections, UTM Party’s SaulosChilima (the first petitioner) and Malawi Congress Party candidate Lazarus Chakwera (the second petitioner), asked the court to nullify presidential election results over alleged irregularities, especially in the results management system.
Mutharika of Democratic Progressive Party was the first respondent with MEC as the second respondent. All the five judges voted for the nullification of the election and recommended that Parliament should review the country’s election management laws, particularly the 50-plus-one provision in choosing the President, to clarify on laws governing the declaration of a winner through a majority vote.