Former governing Democratic Progressive Party (DPP) has asked the High Court to nullify the election of President Lazarus Chakwera and Vice-President Saulos Chilima following the removal of four electoral commissioners the court declared were illegally appointed.
In a constitutional court referral against President Lazarus Chakwera through the Attorney General, DPP is premising its application on the judgement of High Court Judge Kenyatta Nyirenda who ruled that commissioners Arthur Nanthuru, Steve Duwa, Jean Mathanga and Linda Kunje were illegally appointed by former president Peter Mutharika. The four were part of a new team that presided over the court-sanctioned June 23 2020 Fresh Presidential Election.
The party also wants the court to nullify parliamentary and local government by-elections presided over by the High Court Judge Chifundo Kachale led Malawi Electoral Commission (MEC) cohort chaired.
Reads the document in part: “[We are seeking] consequential orders and directions that the status of the Presidency of the Republic of Malawi reverts to the position it was prior to the appointment of the inquorate and unconstitutional seventh cohort [of MEC].”
In an interview yesterday, former Attorney General Charles Mhango, one of the lawyers representing DPP, confirmed that the party had filed the referral in the High Court of Malawi and that Judge Dingiswayo Madise is expected to make a ruling on the application.
He said DPP believes it has valid grounds for nullification of the elections as Nyirenda did not hear any arguments about validity of the elections in his ruling on the MEC commissioners.
Mhango dismissed questions on whether the party can benefit from its own abuse of the law, saying DPP will make its arguments on the matter in court.
“Judge Nyirenda was not sitting as a constitutional court, but a single judge in a matter that did not have anything to do with arguments about validity of the elections. The impact of his decision as well as the decision of the President to rescind the appointment [of commissioners] means out of six, there were only two valid commissioners,” he said.
In a separate interview, Attorney General Chikosa Silungwe confirmed receiving summons on the matter, but said his office was consulting.
“We were served on Monday and we need to seek permission and advice from the relevant offices,” he said.
If DPP is granted its wish, Mutharika will be back in power as President with Vice-President Saulos Chilima maintaining his office as the party only seeks to return the country to the pre-fresh election status.
In his reaction, legal scholar Danwood Chirwa, who teaches law at the University of Cape Town in South Africa, said the suit has no chance of success.
He said: “Judge Nyirenda clearly said that the DPP acted in violation of the law in nominating more candidates than prescribed by law. Its [DPP’s] president wantonly abused his powers by appointing more members from his party and less from the opposition.
“There simply is no possibility that the party that acted unlawfully could benefit from it. The courts don’t come to the aid of those who come with unclean hands.
“The courts have discretion with regard to saving and nullifying State acts found to be unlawful. This is a prime case where an unlawfully constituted commission presided over an election and the courts will have to save the election from invalidity. To do otherwise, would be to enshrine chaos and impunity.”
In his ruling, Nyirenda said Mutharika abused the law which mandated the President to appoint equal number of representatives between opposition and governing party.
The judge directed that DPP should submit three names to the President to replace its fired commissioners while Malawi Congress Party was asked to nominate one more commissioner to have three as well. Both parties have since complied and MEC is reconstituted.