DPP loses elections case with costs

The High Court in Blantyre, sitting as a Constitutional Court, yesterday came hard on the former governing Democratic Progressive Party (DPP), accusing it of scheming to benefit from an illegality it created.

The five-judge panel dismissed DPP’s application in its entirety at a preliminary stage where the party was asking the court to nullify the June 23 2020 court-sanctioned election of President Lazarus Chakwera and Vice-President Saulos Chilima.

The DPP wanted the court to restore the status quo, such as reinstatement of former president Peter Mutharika as Head of State and nullify parliamentary and local government elections conducted after the June 23, 2020 fresh presidential election.

But before the matter went to full hearing, Attorney General (AG) Thabo Chakaka-Nyirenda raised preliminary objections, arguing it was a hopeless case and abuse of the court process.

In dismissing the DPP’s application with costs, lead judge Sylvester Kalembera observed that the verdict of the High Court in Lilongwe regarding the composition of Malawi Electoral Commission (MEC) held that the conduct of DPP in maintaining more than three names and the appointment of more than three commissioners representing the DPP were illegal.

“The finding principle relief sought by [the DPP], namely nullification of the results of the [fresh presidential election] and subsequent parliamentary and local government by-elections, if granted, would have the effect of benefiting [the DPP] from its own illegality,” he observed before dismissing the DPP’s wish.

Kalembera said the court findings were that the proceedings were an appeal in disguise or an attempt to re-litigate the issues in Malawi Congress Party versus the President of the Republic of Malawi on the composition of MEC.

He said this was a matter that was already concluded in Lilongwe and was dealt with to its finality.

“The court having established that the issues in these proceedings are the same as those [in the Lilongwe case], this was an appeal in disguise and this court has no jurisdiction to entertain it,” Kalembera said.

The court further found that DPP lacked standing to approach this court in the manner it did by commencing fresh proceedings, and it dismissed the matter on that premise.

The court also condemned the DPP for suing a wrong party, the AG.

The claimant [DPP] commenced these proceedings against the [AG] on behalf of the Office of the President and Cabinet. The court’s finding is that there exists no juristic person known as the Office of the President and Cabinet of the Republic of Malawi.

“While the Attorney General can be sued on account of actions or omissions of the government or a public officer, he is not sued as in abstract.

“Since the Office of the President of the Republic of Malawi is not a legal person, the Attorney General has been sued in abstract and is, therefore, a wrong party. The action is futile and the court upheld the preliminary objection on this issue,” Kalembera said.

The DPP lost almost on all fronts and their lawyers—former minister of Justice and Constitutional Affairs Samuel Tembenu and former AG Charles Mhango—appeared deflated during and after delivery of the ruling.

Mhango, after the ruling, wore a brave face and voluntarily approached a horde of journalists outside the courtroom, and he jokingly asked the incumbent AG, if he should go first for interview, and Nyirenda, smiling, gave him a go-ahead.

Mhango said they were going to brief their clients about the outcome and hear what they would want to do next.

He said the nature of their job is to take advice from clients; but when asked if it was not their role as well to properly advise their clients how to proceed, he said the advice they give to their clients is confidential.

Nyirenda said he was happy with the outcome of the case and it was something he expected. He said they will examine the cost at an appropriate time.

The Constitutional Court nullified the May 2019 Presidential Election, in which Mutharika was declared winner, after Chakwera and Chilima successfully petitioned the court.