The High Court in Blantyre will on May 10 2022 start hearing an application by Attorney General (AG) Thabo Chakaka-Nyirenda on costs Democratic Progressive Party (DPP) should pay after unsuccessfully seeking the court to adjudicate on the legality of the fresh presidential election.
In November last year, the High Court dismissed the case at preliminary stage, arguing that the matter was a disguised appeal.
The AG Thabo Chakaka-Nyirenda confirmed the hearing in an interview this week but he did not disclose the proposed bill by his office.
The former ruling party sought the interpretation of the Constitutional Court on the legality of the fresh presidential election and subsequent Parliamentary and Local Government by-elections presided over by a Malawi Electoral Commission (MEC) cohort that had four of its members fired by the High Court for not being duly appointed.
Effectively, the case had the potential for nullifying the victory of President Lazarus Chakwera and Vice-President Saulos Chilima if the five-judge panel of the High Court of Malawi sitting as the Constitutional Court granted DPP its wish.
The court fired four commissioners sponsored by DPP, namely Arthur Nanthuru, Steve Duwa, Jean Mathanga and Linda Kunje.
In an interview on Thursday, one of the lawyers for DPP Charles Mhango who is also a former AG, pointed out that the hearing was adjourned on April 14 2022 on request of Chakaka-Nyirenda.
Said Mhango: “I am ready. The reason the AG adjourned the matter is because in my objections to his bill, the AG did not have supporting documents to give, so he asked for another date so as to prepare.”
He could also not be drawn to reveal how much the AG is asking as costs for the litigation.
In dismissing the DPP’s application, lead judge Sylvester Kalembera observed that the verdict of the High Court in Lilongwe regarding the composition of Malawi Electoral Commission (MEC) was that the conduct of the party in maintaining more than three names and the appointment of more than three commissioners representing the party was illegal.
“The principal 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.
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,” he said.
The Constitutional Court nullified the May 2019 Presidential Election, in which Mutharika was declared winner, after Chakwera and Chilima successfully petitioned the court.
However, Mutharika maintains that the judgement was a “judicial coup.