APM outlines Appeal basis
Three days after the Constitutional Court annulled his May 2019 re-election for widespread irregularities, President Peter Mutharika has indicated that he will challenge the ruling in the Malawi Supreme Court of Appeal.
In a special address that lasted four minutes and 20 seconds on Malawi Broadcasting Corporation (MBC) television last night, the President said his intention to appeal the judgement of the five-judge panel of the High Court of Malawi sitting as the Constitutional Court should not be interpreted to mean an overture to stop the next election.
He said: “We are appealing to correct the fundamental errors in the judgement to protect our laws, principles of justice and democracy.
“We believe the judgement has errors that need to be corrected. Above all, we seek justice.”
Mutharika—a lawyer with expertise in international economic law, international law and comparative constitutional law—said alongside his legal team he has “serious reservations with the judgement”.
Said the President: “We consider the judgement as a serious subversion of justice, an attack on our democratic systems and an attempt to undermine the will of the people.
“As it stands, the judgement, if not cured, represents a flawed precedence for all future elections in the country. In fact, this judgement inaugurates the death of Malawi’s democracy. As such, it cannot stand unchallenged.”
The five-judge panel comprising Healey Potani, Redson Kapindu, Ivy Kamanga, Mike Tembo and Dingiswayo Madise 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 Malawi Electoral Commission (MEC) 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.
Reading the judgement, Potani said: “We are satisfied that the petitioners’ complaint alleging undue return has been made out both qualitatively and quantitatively.
“Consequently, we hold that the first respondent [Mutharika] was not duly elected as President of Malawi. As a result, we hereby order nullification of the elections.”
The decision, a first in the country’s 26 years of democracy, makes Malawi only the second country to nullify presidential results after Kenya in September 2017 where opposition candidate Raila Odinga successfully challenged the election of President Uhuru Kenyatta.
In the Malawi case, two of the presidential candidates in the May 21 2019 Tripartite Elections—UTM Party’s Saulos Chilima (the first petitioner) and Malawi Congress Party (MCP) 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 (DPP) 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.
In his address, Mutharika applauded Chilima—his Vice-President following the nullification order—and Chakwera for taking the electoral grievances to court in line with the country’s laws.
However, he condemned ugly scenes of violence that characterised a series of post-election demonstrations mostly organised by Human Rights Defenders Coalition that went parallel to the court process.
Said Mutharika: “I appeal to all Malawians to reject violence. Let us keep calm and order at all times.
“This judgement is not the end of litigation process in the May 21 elections case. Malawi is a country of laws. As a lawful nation, there remains a number of laws and legal processes and procedures provided in our Constitution to regulate how we conduct ourselves to resolve our situation.”
The President said the most important thing for Malawians is to preserve constitutional order and ensure that Malawi continues to be stable and peaceful.
In an earlier interview, presidential press secretary Mgeme Kalilani said Mutharika felt democracy was threatened by the judgement Kalilani described as “double-faced” for nullifying presidential election results while upholding the outcome of parliamentary and local government elections managed by the same electoral body. In his reaction to Mutharika’s sentiments, Chilima told a news conference in Lilongwe that the President has the right to appeal while MCP publicity secretary the Reverend Maurice Munthali said Mutharika lacks satisfactory grounds for such a step.
