- Ansah wants polls held in October
President Peter Mutharika and the Malawi Electoral Commission (MEC) yesterday filed submissions to the Malawi Supreme Court of Appeal challenging the Constitutional Court (ConCourt) judgement that nullified the May 21 2019 presidential election.
The President lodged 18 grounds of appeal, among them that the ConCourt erred in law in holding that in the 2019 presidential election there was an undue election of Mutharika as President.
The submissions filed by Messrs Mbeta and Company also say the five judges erred in 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 irregularities, among others.
On its part, MEC while saying it is ready to hold fresh elections if time is extended, filed 139 grounds of appeal, including an application for suspension of enforcement of the ConCourt judgement.
The ConCourt in Lilongwe has since ordered that the hearing for the application for suspension of enforcement should take place Tuesday, February 11 at 9am.
In a sworn statement for the stay of the ConCourt ruling, MEC chairperson Jane Ansah argues that it is not feasible to hold fresh elections in 150 days’ time and proposes that the exercise be carried out on October 28 this year.
Among others, the electoral body cites funding constraints and transport challenges that the body experienced during the May 21 2019 elections, saying they are likely to haunt the commission again.
MEC put the budget for the fresh elections at K43 billion.
In its submission to the Malawi Supreme Court of Appeal, dated February 7 2020, MEC has cited as a ground for appeal the alleged bribery attempt by banker Thom Mpinganjira on the judges as grounds for mistrial. MEC argues that:
- The ConCourt erred to continue hearing the case even after attempts to bribe the judges were made by some third parties.
- The court erred by continuing with the trial without the affected five-panel of judges recusing themselves from the case.
Ground 3.138 reads: “The learned judges erred in law by continuing to hear the matter and deliver a judgement on the matter despite getting knowledge midway during the trial, of alleged direct attempts by third parties to compromise the court with financial inducements.
The electoral body observed that continuing hearing and delivery of judgement amounts to a mistrial; hence, the matter ought to be reheard by an impartial court.
Other grounds are that the judges erred in making a finding that MEC could not determine national results without having access to district results, when the issue was not specified by the petitioners or any sworn statements.
In a telephone interview, one of MECs lawyers Tamando Chokotho declined to comment on the appeal,
But private practice lawyer John-Gift Mwakhwawa, in an interview last evening, said it is difficult to tell what type of case MEC is putting up.
He observed that MEC could be preparing itself that in the event the stay order is overruled, the elections should proceed as ordered by the ConCourt.
Mwakhwawa, a former president of Malawi Law Society (MLS), also observed that before ordering the 150 days period, the ConCourt had taken into account the country’s laws.
Said Mwakhwawa: “Our laws require less than 150 days if a President dies in office for MEC to hold elections. This means it wasn’t an arbitrary choice of the number of days.”
He also stressed that the court considered that it would be wrong to keep a President who was not duly elected for a longer period in office.
Some of the issues MEC raised in the application for a stay are that Parliament should not inquire into the competence and conduct of its commissioners since the ConCourt already pronounced itself on the same, thus the exercise is just a sham.
University of Cape Town legal expert Danwood Chirwa, among other things, said on his Facebook account, that some issues MEC is citing for appeal “hint at desperation, loss of ideas or just plain incompetence on the part of MEC’s lawyers and the chair of the commission, and a continuing abdication of responsibility the court was concerned with”.
“Equally mind-boggling is the fact that the Chair of MEC has sworn an affidavit in which she insults both the Constitutional Court judges and Parliament… by accusing them of making an order to conduct ‘sham investigations’.
“This is after the court found the commission acted incompetently and unlawfully and abdicated its responsibilities in conducting the presidential elections,” said Chirwa.
He also agreed with Mwakhwawa: “Why should a president who’s been found to have been illegitimately declared Head of State be allowed to stay in power beyond what is necessary? This illegitimacy has subsisted for the last five and a half years.”
The hearing for the application for the stay order is coming up for hearing in the ConCourt on Tuesday, February 11, at 9am, according to the High Court.