Malawi Electoral Commission (MEC) has been faulted for appealing to the Malawi Supreme Court of Appeal a High Court ruling delivered last Friday dismissing an application to throw out, based on technicalities, a petition challenging presidential election results.
In separate interviews yesterday, a law professor and governance commentator observed that the electoral body should not have made the application in the context of MEC being a public entity that is supposed to operate in the interest of Malawians as per the Constitution. However, Attorney General Kalekeni Kaphale said MEC is equally entitled to act.
Speaking in a telephone interview yesterday, Garton Kamchedzera, a professor of law at Chancellor College, a constituent college of the University of Malawi, said at this point, it is difficult for Malawians to understand why an electoral body that is supposed to serve their interests and is bound by constitutional principles of accountability and transparency is appearing to suppress the truth from coming out.
He said: “This case would have given them [MEC] an opportunity to come out as an institution that has integrity and that conducted the elections with integrity.
“But by appearing as not wanting to do that, it is like they have something to hide and it demeans their credibility as an impartial body.”
On his part, Rafiq Hajat, director for Institute for Policy Interaction (IPI), said for MEC to appeal the case on technicalities would be a miscarriage of justice, bearing in mind the importance of the issue.
He said: “This appeal to me is a bid to hinder justice. If MEC has nothing to hide, why would they appeal?”
But in a written WhatsApp response, Kaphale said MEC is not barred from reliance on technicalities.
“We are still being served with evidence and are yet to file formal responses to that evidence. Technicalities are preliminary in any trial situation,” he said.
In the case, MEC is the second respondent while President Peter Mutharika is the first respondent to a joint petition from two of the presidential candidates in the May 21 Tripartite Elections, first petitioner Saulos Chilima of UTM Party and the second petitioner Lazarus Chakwera of Malawi Congress Party(MCP).
A five-judge panel of the High Court sitting as a Constitutional Court in Lilongwe on Friday unanimously dismissed an application by Mutharika to have the petition thrown out for purportedly being “irregular, incompetent and incurably defective”.
The five-judge panel comprises Healey Potani, Mike Tembo, Dingiswayo Madise, Ivy Kamanga and Redson Kapindu.
MEC’s notice of appeal, filed yesterday through law firm Churchill & Norris, outlines five grounds of appeal, including a claim that the lower court erred by holding that there is no requirement under the law for an election petition to be verified by a sworn statement and by holding that a petition is not a claim in terms of Order 18 rule 2 (1) of the courts (High Court) (Civil Procedures) Rules 2017.
MEC wants the Supreme Court to reverse the High Court’s decision in proceeding with the case on the basis that the petitions, initially filed separately but later consolidated by the court, were filed fraudulently, out of time and without sworn statements.
Both Chilima and Chakwera are challenging results of the presidential election, claiming that they were rigged in favour of Mutharika who was declared winner with 38 percent.
Results MEC announced show that Chakwera trailed Mutharika with 35 percent while Chilima finished third with 20 percent of the votes.
Chief Justice Andrew Nyirenda certified the case as a constitutional matter and appointed the five-judge panel to hear the case.