Chief Justice Andrew Nyirenda is set to decide whether there is merit in an application by opposition Democratic Progressive Party (DPP) for the courts to nullify President Lazarus Chakwera’s election last June.
During a virtual hearing of the application which was not open to the media, High Court of Malawi Judge Dingiswayo Madise on Monday referred the matter to the Chief Justice after hearing parties to the case.
In an interview after the adjournment, former Attorney General and lawyer representing DPP Charles Mhango confirmed details of the proceedings on Monday.
He said: “This morning the Attorney General made an application before Judge Madise in chambers to dismiss the case by the DPP seeking the nullification of the 2020 Presidential Election.
“But the judge has ruled that the case raises serious constitutional issues and, therefore, he is referring the matter to the Chief Justice to certify the case as constitutional in nature and to empanel a Constitutional Court to hear the case.”
Mhango, who was in former president Peter Mutharika’s legal team in the 2019 presidential election nullification petition, also said he requested the judge to recuse himself from the matter on the basis that he was a member of the five-judge panel of the High Court of Malawi sitting as the Constitutional Court.
However, he said Madise’s decision focused on the arguments raised by the DPP instead of the preliminary applications.
The State was represented by Ministry of Justice principal State advocate Neverson Chisiza who, however, refused to grant an interview on the proceedings.
Court records show that the State opposed the DPP’s application, but the judge held the view that the matter was raising constitutional issues requiring the Chief Justice to certify it as a constitutional matter.
Further, the records show that Madise directed that the Attorney General’s application to have the matter thrown out will be heard by the same Constitutional Court panel to be constituted by the Chief Justice.
The judge has since given the Attorney General seven days to amend its defence and file the same before the matter can be referred to the Chief Justice.
In the case, DPP wants the court to declare that Chakwera and Vice-President Saulos Chilima were illegitimately elected because four of the commissioners of the Malawi Electoral Commission (MEC), who presided over the court-sanctioned fresh presidential election on June 23 2020, were last month dismissed from the job by the High Court on the basis that Mutharika had “irregularly” recruited them.
The DPP argues that going by the verdict of High Court Judge Kenyatta Nyirenda, decisions made by the four commissioners are invalid.
Chief Justice Andrew Nyirenda also served on the panel of seven Malawi Supreme Court of Appeal justices that affirmed the decision of the Constitutional Court to nullify the 2019 presidential election.
While serving as the country’s president, Mutharika, who has repeatedly dismissed the court decisions as “a judicial coup”, attempted to dismiss Nyirenda and Justice of Appeal Edward Twea by sending the duo on forced leave. However, the Judiciary rejected the proposal and the issue sparked uproar both locally and internationally.
In nullifying the appointment of the four DPP-nominated commissioners, Nyirenda ruled that his judgement would have no bearing on the validity of the elections they presided over.
But DPP, through its lawyers want the court to nullify the June 23 2020 Fresh Presidential Election as well as several parliamentary and local government by-elections the team presided over.
Reads in part the DPP petition: “A declaration that the seventh cohort of Electoral Commission, having been rendered unconstitutional and inquorate, the fresh presidential election presided over, managed and conducted by the inquorate and unconstitutional seventh cohort of the Election Commission on 23rd June 2020 and all subsequent parliamentary and local government by-elections are thereby null and void.”
Further, DPP wants the court to order that the status of the presidency in the country reverts to the position it was prior to the appointment of the seventh MEC cohort.
If the court grants DPP its wish, Mutharika will be President and Chilima Vice-President based on the May 2014 Tripartite Elections as earlier ordered by the Constitutional Court which nullified the 2019 presidential election.