High Court judge Healey Potani has recused himself from the electoral dispute case he was handling after Malawi Congress party (MCP) presidential candidate Lazarus Chakwera asked him to do so.
Chakwera, whose party claims to have been robbed of votes, through his lawyer Gustav Kaliwo, said Potani’s younger brother, Harris, works at Malawi Electoral Commission (MEC) as deputy chief elections officer responsible for operations.
Kaliwo argued that Potani had set precedence when he recused himself in an earlier matter this year between Jessie Kabwila and MEC and felt he needed to do the same in the current matter to avoid compromising independence of the Judiciary.
Lawyers representing MEC and opposition Democratic Progressive Party (DPP) and its presidential candidate Peter Mutharika argued against Potani’s recusal, but after hearing arguments, Potani reluctantly recused himself from the case.
Potani ordered that another judge must be appointed to take up the matter, adding hearing could be arranged to take place today evening considering the urgency of the matter.
The development puts MEC in a dilemma as it is set to announce election results tomorrow by 4pm at the expiry of the 48hour statutory window which compels MEC to announce the results.
The statutory eight-day period for MEC to announce the results already expired and the commission it only had two more days to do so as is provided by law.
MEC chairperson Maxon Mbendera announced yesterday that the commission will announce the results tomorrow Friday May 30 subject to the outcome of the court case.
Before Potani recused himself, there were two issues the court was tasked to determine; whether MEC has powers to call for a recount of poll votes or physical verification and whether the courts have powers to extend the eight-day period under which it is compelled to announce the results.
Potani, making his ruling, wondered why MCP lawyers did not raise the recusal issue on Wednesday when he convened a conference in his chamber with all the lawyers representing different parties.
The judge said he was of the view that today was the day which was set aside to hear substantive matter, but was taken by surprise to hear MCP’s stand.
Potani explained that covered with an oversight, he took up the matter on a Sunday and he was the only judge available.
He said when the current matter came before him, he considered not to take it up, but considering the nature of the matter and the urgency it required, he felt he could take it up without compromising with his judicial independence.
Potani said in the circumstances and looking at the nature of the case, he had to reluctantly recuse himself.
But before he recused himself, Potani dismissed a proposal by Kaliwo to vacate an injunction one of the presidential candidate, Friday Jumbe, obtained earlier to stop MEC from vote recount.
Potani said there was no application before the court to that effect, advising the MCP lawyers to file that if they wanted, but should be inter-partes if they had to allow all parties make proper processes.
Lawyers Patrick Mpaka, Felix Tandwe and Jai Banda, representing opposition United Democratic Front (UDF) presidential candidate Atupele Muluzi who joined the matter as an interested party, proposed that the matter be certified by the Chief Justice to be heard by a three judge panel as a constitutional matter.
But Potani, citing laws and what the Chief Justice Anastasia Msosa had said on the matter, dismissed that application on the basis that there was nothing in the matter to do with application or interpretation ofthe Constitution.
MEC is being represented by Modecai Msisha, DPP and Mutharika by Kalekeni Kaphale, Samuel Tembenu, Frank Mbeta, Chancy Gondwe among others, and lawyer Lusungu Gondwe is representing Charles Mwabyale, who joined the matter as an interested party.Chakwera is also in the matter as an interested party.
There were different cases but the cases have been consolidated to make one case. MCP is demanding recount of the votes following alleged irregularities and fraud during voting but DPP, whose candidate was leading according to unofficial results, is rejecting the recount and are demanding that an announcement of the winner be made first.