Five judges of the High Court of Malawi hold the fate of the country’s Presidency in a case where opposition Democratic Progressive Party (DPP) wants the court-sanctioned June 23 2020 fresh presidential election nullified.
The development follows the certification by Chief Justice Andrew Nyirenda of the DPP application as a constitutional matter; hence, to be heard by the Constitutional Court.
DPP wants the court to nullify the election of President Lazarus Chakwera and Vice-President Saulos Chilima as well as other parliamentary and local government by-elections managed by the Malawi Electoral Commission (MEC) cohort four whose members the High Court in May this year declared not duly appointed.
In an interview on Tuesday, High Court of Malawi and Malawi Supreme Court of Appeal registrar Gladys Gondwe said Nyirenda referred the matter to judge president Sylvester Kalembera and that it will be heard by five judges.
She said Kalembera will lead a panel also comprising judges Rowland Mbvundula, Dorothy NyaKaunda Kamanga, Annabel Mtalimanja and Thom Ligowe.
Gondwe said the panel is scheduled to meet on August 30 to decide on the further conduct of the matter.
Reacting to the development in an interview on Tuesday, lawyer Charles Mhango representing DPP said the Chief Justice’s decision was expected.
He said: “We are happy with the development because that’s what we were looking forward to. So, we are satisfied with what has happened. We are expecting that the matter will be handled in a fast manner.”
Mhango said what is important at the moment is to expedite all processes for commencement of the case since the panel of judges to handle the case has been chosen.
On his part, Solicitor General Reyneck Matemba on Tuesday said they will wait for guidance from the Constitutional Court on how to proceed with the case.
“You may wish to know that there are some preliminary issues that both parties raised in the referral to the Chief Justice. Issues that will have to be determined by the court,” he said.
The DPP case will mark the second time that the Constitutional Court will decide the fate of the country’s Presidency. The first was the presidential election nullification petition filed by Chakwera and Chilima after the May 21 2019 presidential election. The Constitutional Court granted the petitioners their wish on February 3 2020 and ordered a fresh election.
The erstwhile governing party wants Chakwera and Chilima’s election nullified following removal of their electoral commissioners the court declared were illegally appointed.
If the DPP is granted its wish, former president Peter Mutharika will be back in power as President with Chilima maintaining his office as the party only seeks to return the country to the pre-fresh election status.
The former governing DPP is seeking the nullification on the grounds that the process was managed by a MEC cohort that was not legally constituted following the High Court ruling that nullified the appointment of four DPP-sponsored commissioners—Arthur Nanthuru, Linda Kunje, Jean Mathanga and Steven Duwa.
In June this year, High Court Judge Kenyatta Nyirenda faulted Mutharika for appointing more DPP commissioners than were legally necessary. The ruling followed an application by Malawi Congress Party (MCP) secretary general Eisenhower Mkaka.
The former president appointed four commissioners representing DPP and two for the then opposition MCP.
High Court Judge Dingiswayo Madise referred the matter to the Chief Justice for assessment and possible certification as a constitutional matter to be heard by a panel of at least three High Court judges.
In nullifying the appointment of the four DPP-nominated commissioners, Nyirenda said his judgement would have no bearing on the validity of the elections the commissioners presided over.
But DPP wants the court to nullify the June 23 2020 fresh presidential election and several parliamentary and local government by-elections the team managed.
Reacting to the developments in an interview on Tuesday, public policy and governance expert Rafiq Hajat said it would be unpredictable on the outcome of the matter.
“Our Constitution is being severely tested, but it has withstood all that with time and I am sure it will also withstand this one as well,” he said .