The Malawi Congress Party (MCP) has failed to move the High Court to effect judgement in its favour in a case it is seeking annulment of some Malawi Electoral Commission (MEC) commissioners’ appointments.
MCP sued President Lazarus Chakwera on March 29 2021 over the appointment of commissioners Jean Mathanga, Linda Kunje, Steve Duwa and Arthur Nanthuru.
The four, who were appointed by former president Peter Mutharika last year, are also being sued as interested parties in the application that seeks judicial review of their appointments.
Chakwera, who is being sued by virtue of being the “President of the Republic”, and the four commissioners were supposed to file their defences 14 days after being served with the application.
However, they had not done at the expiry of the period, prompting MCP lawyer Abison Chitukula to apply for “consequential order that judgement be entered for the claimant (MCP).”
In the fresh application, dated April 26 2021, asking for the order, he wrote: “I verily believe that there has been non-compliance with the rules on the part of the defendant and interested parties by their failure to file and serve their respective defences supported by sworn statements within 14 days…
“I verily believe that the non-compliance aforesaid is immaterial and non-curable and the court should exercise its discretion to enter judgement on terms sought in the application or as it deems fit in the circumstances.”
However, Mathanga and Kunje’s lawyers, in a counter application, argued that they failed to file defences as they were fighting against their dismissal.
Last month, the Office of the President and Cabinet rescinded their appointments on arguments that they were incompetent as they were part of the commission that messed up the 2019 Presidential elections.
Through their lawyer Powell Nkhutabasa, the two, who have obtained an injunction against their dismissal, have raised a number of arguments opposing application for the consequential order.
“In the face of our dismissals, we got so preoccupied with challenging our dismissals…On our part, while accepting that we have delayed, we feel the reasons advanced above may explain the delay.
“Furthermore, the delay is only for few days and can thus be hardly said to be excessive, inordinate and incurable as the claimant suggests,” the document dated 29 April 2021, outlines.
In his ruling in Lilongwe on Friday, Justice Kenyatta Nyirenda gave the defendants a chance to file their defences, according to the MCP lawyer.
“The court has directed that the defendant [President of the Republic of Malawi] and interested parties (the 4 members of the Electoral Commission) should file their respective defences on or by 6 May 2021,” Chitukula said in an interview yesterday.
He said the proposal to allow the defendants to file defence was crafted by all the concerned lawyers.
“We, the lawyers agreed that the matter be decided on the merits; hence allowing the defendants and interested parties to file defences. The honourable judge endorsed the agreement,” he said.
In the initial application, MCP is claiming that the then president Peter Mutharika axed its nominee to accommodate four Democratic Progressive Party (DPP) commissioners.
The Tonse Alliance main partner argues in the application that the president acted contrary to the law when he only appointed two MCP Anthony Mukumbwa and Olivia Mchaju-Liwewe instead of three.
“As a qualifying political party, especially where only two political parties qualified, MCP was entitled to have all three nominees appointed, but instead the defendant (the president) appointed only two of MCP’s nominees without any reason given for rejecting the other nominee and, in contrast, appointed four for the DPP,” reads the application in part.
MCP’s argument centres on Section 4 of the amended Electoral Commission Act of 2017 which empowers parties that obtain one tenth of parliamentary seats to submit to the President a minimum of three nominees.
“If all the four interested parties [commissioners] were not nominated by DPP then it raises the question of who nominated the fourth apart from the three who DPP could nominate as a maximum, because no other party apart from DPP and MCP qualified to nominate persons,” the application further reads.
MCP has since asked that the court, among others, orders that the President appoints new commissioners and declares that the appointment of the four commissioners was illegal.Nanthuru and Duwa have since appointed Gabriel Chembezi as their lawyer while Thabo Chakaka-Nyirenda will represent the President.