Chief Justice Andrew Nyirenda has asked Democratic Progressive Party (DPP) lawyers to submit their certificates, a move some legal experts say signals that the party’s fresh presidential election challenge will be certified as a constitutional matter.
In an interview on Thursday, DPP legal team member Charles Mhango confirmed that the Chief Justice had asked them to submit their certificates as part of the assessment of the party’s bid to have an interpretation on the legality of the court-sanctioned fresh presidential election held on June 23 2020 after the High Court recently fired four members of the Malawi Electoral Commissioner (MEC) for having been appointed irregularly.
He said: “The office of the Chief Justice asked me to prepare the certificates which the Chief Justice signs. So, I presented that on Friday. In those certificates basically we are supposed to say we are satisfied that this is a constitutional matter.
“It is now up to him [the Chief Justice] that once he certifies, he chooses the judges and refer the matter to those judges. That’s what we are waiting for at the moment.”
On whether at this stage the Chief Justice could turn down the proposal to refer the case to the Constitutional Court, Mhango insisted that by asking for the certificates, the matter has been approved as a constitutional issue.
“When the Chief Justice has seen your documents and he now wants you to file your certificate for him to sign, it means we have already crossed that bridge,” he said.
In a separate interview on Thursday, another private practice lawyer Michael Goba Chipeta said that by asking for the certificates, the Chief Justice has tentatively certified the case.
“If the Chief Justice has asked DPP to draft the certificates that means he has certified the matter to go to the Constitutional Court,” he said.
But in an interview on Thursday, High Court of Malawi and Malawi Supreme Court of Appeal registrar Gladys Gondwe said the Chief Justice was yet to make a decision on the matter.
She said: “The Honourable the Chief Justice is attending to the matter and we are yet to learn of his decision. Owing to other commitments which the Chief Justice had in Lilongwe, he will only be in the office from tomorrow [today, Friday].”
The former governing DPP is seeking to convince the court to nullify President Lazarus Chakwera’s election in the June 23 2020 election on grounds that the process was managed by a MEC that was not legally constituted following the High Court ruling that nullified the appointment of four DPP-sponsored commissioners.
In June this year, High Court Judge Kenyatta Nyirenda faulted Mutharika for appointing more DPP commissioners—Arthur Nanthuru, Steve Duwa, Jean Mathanga and Linda Kunje—than were legally necessary. The ruling followed an application by Malawi Congress Party (MCP) secretary general Eisenhower Mkaka.
The former president appointed four commissioners representing DPP and gave the then opposition Malawi Congress Party (MCP) two slots.
Upon analysing the DPP application and hearing the State, High Court Judge Dingiswayo Madise last month referred the matter to the Chief Justice for assessment and possible certification as a constitutional matter to be heard by a panel of at least three High Court judges.
In nullifying the appointment of the four DPP-nominated commissioners, Nyirenda said his judgement would have no bearing on the validity of the elections the commissioners presided over.
But DPP wants the court to nullify the June 23 2020 fresh presidential election and several parliamentary and local government by-elections the team managed.
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.
The case’s possible reference to the Constitutional Court is happening while the office of the Attorney General (AG), the government’s chief legal adviser, is vacant after Chakwera fired Chikosa Silungwe two weeks ago.
But in an interview on Thursday, Ministry of Justice spokesperson Pirirani Masanjala played down the absence of the AG, saying: “The office of the Attorney General is never vacant. It is still running. At law, the Solicitor General is always the deputy Attorney General.
“As to who will be filing and approving the defence in the case, I don’t know. But the office of the Attorney General is still running.”
MCP, the party Chakwera leads and is the main partner in the governing nine political-party Tonse Alliance, has indicated that it might join the case.
In an interview on Thursday, MCP spokesperson Reverend Maurice Munthali said: “MCP is an interested party owing to the fact that we are part of the ruling alliance. So, we are not ruling out joining the case.”
If the court grants DPP its wish, Mutharika will be President and Vice-President Saulos Chilima will maintain his position based on the May 2014 Tripartite Elections as earlier ordered by the Constitutional Court which nullified Mutharika’s 2019 presidential election victory.