ConCourt directives get compliance, clock ticks
Respective authorities have either complied with or partially implemented the six directives the High Court of Malawi sitting as the Constitutional Court issued when it nullified the May 21 2019 presidential election on February 3 2020.
The compliance is coming against a background of the governing Democratic Progressive Party (DPP) street protests against the judgement that ordered a fresh presidential election within 150 days.
It is also coming at a time President Peter Mutharika (the first respondent) and second respondent Malawi Electoral Commission (MEC) have filed appeals against the court judgement that favoured first petitioner and UTM Party president Saulos Chilima—who is also the country’s Vice-President—and second petitioner Malawi Congress Party (MCP) president Lazarus Chakwera.
The five-judge panel of the High Court, among others, directed that the presidency revert to the pre-May 21 2019 Tripartite Elections status of Mutharika as President and Chilima as Vice-President based on the May 20 2014 Tripartite Elections.
The court also prescribed some legislative amendments to facilitate the holding of a fresh presidential election based on 50-plus-one majority and a run-off where no candidate garners the required majority.
Further, Parliament’s Public Appointments Committee (PAC) was tasked to inquire into the capacity and competence of MEC’s current commissioners and take necessary amendment action in respect of Section 75 (1) of the Constitution so that the said provision was clear on the appointing authority.
Thirty days after the judgement, government has so far reinstated Chilima as the country’s Vice-President after effectively removing his successor Everton Chimulirenji, who has since taken up the Cabinet post of Disaster Management Affairs and Public Events.
Parliament has also passed amendments to the Parliamentary and Presidential Elections Act (Amendment) Bill and Electoral Commission Act (Amendment) Bill, in the process proposing May 19 2020 as date for the fresh presidential election.
Reacting to the developments, Titus Mvalo, one of the lawyers representing Chakwera, commended Parliament for its compliance to put in place enabling legislation as directed by the court.
He said his expectation was that the President would comply with the court order and sign into law the proposed amendment Bills despite the fact that he was appealing against the judgement.
Said Mvalo: “An appeal is not a stay order. He must comply with the court order.”
Presidential press secretary Mgeme Kalilani said, on both cases of taking actions on Bills passed by Parliament and recommendations to remove commissioners, there are laid down legal procedures to be followed.
He said due processes will be followed to the letter in both cases.
Said Kalilani: “Regarding the electoral Bills passed by Parliament last week, the law says the President has 21 days within which he has to make a decision on assent. Consequently, we shall all know what is the President’s stand regarding assent to those Bills.”
On the appeal process, he said it was the expectation of all Malawians, including petitioners and respondents as well as the Judiciary, that the appeal would be heard and concluded on time.
Lawyer Justin Dzonzi said the Constitutional Court judgement set in motion specific things and that the task was passed to Parliament which has since passed the task to the Executive arm of government.
He said while Mutharika has 21 days to assent to Bills passed in Parliament, the President has no time limit to act on the recommendations on the removal of MEC commissioners.
Said Dzonzi: “A person who took an oath of office but fails to exercise his power might be committing capital offence. At the centre of all these is the constitutionality of the government in Malawi. Any effort to prevent constituting a constitutional government is committing treason.”
Chilima and Chakwera petitioned the court to nullify the May 21 presidential election over irregularities, especially in the results management system.
