Election appeal on with restrictions
Seven of the nine judges of the Malawi Supreme Court of Appeal will today hear an appeal against a Constitutional Court judgement that overturned t h e M a y 2 1 2 0 1 9 presidential election amid
restrictions in compliance w i t h c o r o n a v i r u s (Covid-19) preventive measures.
During the two-day hearing in Lilongwe, the Judiciary, in compliance w i t h C o v i d – 1 9 precautionary measures such as social distance, has restricted the number of lawyers to represent parties in the case. The number of other stakeholders to enter the courtroom has also been trimmed.
In its communication, t h e J u d i c i a r y s a i d both petitioners and respondents will be represented by a maximum of two lawyers each. This will reduce the number of lawyers for the parties in the case from about 20 in the Constitutional Court to eight.
Besides the lawyers, the court will also allow at least three people from each party.
The Judiciary has also reconstituted the judges’ panel by bringing on
board Justice of Appeal (JA) Lovemore Chikopa in place of JA Dunstan Mwaungulu.
I n a n i n t e r v i e w yesterday, High Court of Malawi and Malawi Supreme Court of Appeal registrar Agnes Patemba said Chikopa has been added on the panel because Mwaungulu is not present for the task.
T h e p a n e l a l s o comprises Chief Justice Andrew Nyirenda, JAs Edward Twea, Anaclet C h i p e t a , A n t h o n y Kamanga, Frank Kapanda and Rezine Mzikamanda.
There are nine judges in the Supreme Court, including Malawi Electoral Commission (MEC) chairperson Jane Ansah.
In the case, MEC and President Peter Mutharika of Democratic Progressive Party are challenging the February 3 2020 judgement of the five-judge panel of the High Court of Malawi sitting as the Constitutional Court which nullified the presidential election, citing irregularities in the results management system.
The lower court also ordered a fresh presidential election within 150 days of its judgement.
The country’s estranged Vice-President Saulos Chilima—who contested the May 21 presidential race on a UTM Party ticket— and Malawi Congress Party (MCP) president Lazarus Chakwera had challenged the presidential election results and the Constitutional Court granted them their wish.
On March 12 this year, the seven-judge panel of the Supreme Court
unanimously dismissed an application by MEC to have processes leading to the fresh presidential election stopped pending the appeal case.
Chakwera’s lead counsel Mordecai Msisha could not be reached for comment yesterday while Chikosa Silungwe, representing Chilima, said he will be with his colleague Marshall Chilenga in the courtroom for the last mile not to defend his client, but to defend the constitutional order.
Said Silungwe: “This is an appeal case. We have been ready for it since they filed the case. It is our professional duty to be ready not only to the client, but also the Constitution. This is not about who we are representing, but about preserving the constitutional order.”
MEC will be represented by private practice lawyer Tamando Chokotho after the Chief Justice on Monday dismissed an application by two South African lawyers—Dumisa Buhle Ntsebeza and Elizabeth Makhabani Baloyi-Mere of Mboweni Maluleke Inc
Attorneys—for admission to represent the electoral body.
In an interview on Monday, Chokotho said: “I have been into the matter since its inception and I am ready to represent the electoral body.”
Mutharika’s lawyers were not immediately available for comment, but presidential press secretary Mgeme Kalilani said the President has maintained Frank Mbeta as his lawyer. He could not indicate who would accompany him.
MEC declared Mutharika winner of the May 21 2019 presidential election with 38 percent of the votes. He was followed by Chakwera, with 35 percent and debutant Chilima amassed 20 percent.
The Constitutional Court judges comprising Healey Potani, Ivy Kamanga, Dingiswayo Madise, Mike Tembo and Redson Kapindu annulled the election, saying Mutharika was not duly elected.
The court reverted the presidency—including the Office of the Vice-President—to the May 2014 election status of Mutharika as President and Chilima as Vice-President.
Mutharika is on record as having denounced the Constitutional Court ruling as “a serious subversion of justice, an attack on our democratic systems and an attempt to undermine the will of the people”.
