Electoral case Hangs in balance

The Malawi Supreme Court of Appeal now holds the key to the ongoing presidential election petition case.

The court sits today to hear an appeal after an application by President Peter Mutharika and Malawi Electoral Commission (MEC) to have the elections case thrown out was dismissed by the High Court sitting as the Constitutional Court on June 22 2019.

Judge Healey Potani, chair of the five-judge panel that dismissed the application before the electoral case started in earnest last Thursday, announced yesterday when he adjourned the proceedings that the case would not take place today to give room to the Supreme Court as other lawyers in the ongoing elections petition case are also in the case before the Supreme Court.

Potani said hearing of the electoral case under the Constitutional Court would proceed on Friday (tomorrow).

The announcement by Potani, however, brought anxiety among many members of the society following the substantive electoral case, including political party followers, but a legal expert Justin Dzonzi explained in an interview last evening that there are procedural directives in such matters requiring an appeal be heard in two hours, one hour for each side to present its arguments.

He said: “But of course one thing is clear, should the Supreme Court agree with President Mutharika and MEC that the lower court erred to dismiss their application to have the electoral proceedings thrown out as they had argued, the current proceedings in the Constitutional Court falls off.

“In simple terms, there will be no case for the Constitutional Court to handle. Though on technical grounds, it would mean President Peter Mutharika was duly elected.”

The legal expert further said should the Supreme Court uphold the ruling of the lower court, the matter in the Constitutional Court would proceed.

Asked how practical it was for the Supreme Court—which today will have a seven-judge panel sitting in Lilongwe—to hear the matter within two hours and deliver a timely ruling, Dzonzi said it is possible for the court to deliver its ruling the same day, a few hours after hearing the appellants and respondents in the matter.    

He explained that the case before the Supreme Court is a matter raising an issue dealing with rule of procedure, not the actual case.

“It’s an interlocutory appeal, a small hearing, with a great potential that the Supreme Court can determine it there and then,” Dzonzi said.

Earlier on June 21, Potani’s panel of Dingiswayo Madise, Redson Kapindu, Mike Tembo and Ivy Kamanga, sitting as the Constitutional Court in Lilongwe, ruled against Mutharika and MEC to quash the referral case filed by Malawi Congress Party (MCP) president Lazarus Chakwera and UTM Party leader Saulos Chilima who are disputing the May 21 presidential poll results.

Both MCP and UTM claim the May 21 presidential election was rigged in favour of Mutharika who was declared winner with 38 percent of the votes trailed by Chakwera with 35 percent and Chilima with 20 percent.

Commenting on the progress of the electoral case and the time set to finish it (within 12 days)and the interruptions by the hearing of the appeal by Supreme Court, Dzonzi said there was still great potential to finish within time or slightly out of time depending on the length of cross-examination.

Yesterday, Attorney General Kalekeni Kaphale completed cross-examining Chilima after keeping him in the witness stand for five days.

Adjourning the matter yesterday, Potani also announced that they would not waste today’s time as the Constitutional Court is not sitting, saying they will utilise the time to discuss case management and look into how best to proceed with the case so as to handle it within time

Renowned lawyer Raphael Kasambara told The Nation on Tuesday that the case would go beyond the initial allocated days, dismissing assertions that the court might dispose of the case within the shortest period.

“You should know that there are no specific allocated days for the case. The court simply blocked a number of days for the first session. After those days are exhausted, another set will be allocated,” he said.

Commenting on the same issue, Chancellor College law lecturer Garton Kamchedzera said the pace of the case was a critical element that the public was firmly fixed to.

But Dzonzi observed yesterday there was great improvement on the progress.

He explained that Chilima would still remain in the witness stand, assuming the case continues after the Supreme Court verdict, for lawyers representing Mutharika and other lawyers for MEC to cross-examine him unless an agreement was entered that Attorney General (AG) Kalekeni Kaphale, who had five days with Chilima of cross-examination, was to cover everything.

Dzonzi said after that, Chilima, the immediate past vice-president, would still remain in the witness stand for the friendly re-examination, where his lawyers would ask him questions to reinforce areas of his evidence they feel may have been discredited by the cross-examinations. After which, the legal expert explained, Chilima’s witnesses, who submitted their sworn statement to the court, would come in and would take the same process, and so too the second petitioner, Chakwera, when his turn comes