UTM Party presidential candidate Saulos Chilima and Malawi Congress Party’s (MCP) Lazarus Chakwera in the May 2019 polls have responded to President Peter Mutharika and Malawi Electoral Commission’s (MEC) application to stay a judgement that annulled the presidential election.
The High Court, sitting as a Constitutional Court in Lilongwe, declined to stay its own judgement delivered on February 3, compelling Mutharika, first respondent in the presidential nullification petition case, and MEC, second respondent, to take the stay application to the Malawi Supreme Court of Appeal.
Mutharika and MEC want the stay order granted before the substantive appeal case is heard, and should the Supreme Court grant them their wish, it would mean all the orders the lower court gave, including an order for fresh presidential election within 150 days and subsequent preparations for it, would come to a halt, according to one legal expert John-Gift Mwakhwawa. If that wish for the stay order is granted, it would also mean all steps Parliament took in preparation for the fresh presidential poll as directed by the court, including electoral Bills that were brought before Parliament and passed, would be null and avoid until the substantive matter is heard, according to Mwakhwawa.
But if the Supreme Court declines to grant Mutharika and MEC the stay order, the legal expert said, preparations for the fresh presidential election would continue, with the Supreme Court proceeding to hear the substantive appeal case.
At the application for the stay order stage, Everton Chimulirenji, the dethroned State vice-president following the nullification of the presidential election, should be one of the people holding cards close to their chest because should the court grant the stay order, he automatically reverts to his position.
The Constitutional Court judgement saw Chilima retaining the position of State Vice-President based on May 20 2014 presidential election when he paired with Mutharika as his running mate. The court also maintained Mutharika as President based on that 2014 ticket.
After falling out with Mutharika, Chilima went on to form UTM Party although he remained vice-president and contested for the presidency in the disputed May 21 2019 presidential election in which Mutharika was controversially declared winner.
The momentous appeal comes in the Malawi Supreme Court of Appeal this Wednesday, exactly 37 days, including weekends, after the High Court, sitting as the Constitutional Court in Lilongwe handed down what is now considered a historic judgement that nullified the presidential election on February 3.
The five-judge panel of the Constitutional Court ordered the fresh presidential election within 150 days and the Public Appointments Committee (PAC) of Parliament, as per court’s directives, has since set May 19 for the fresh election.
Chilima and Chakwera, both appearing as respondents in the appeal matter at the Malawi Supreme Court of Appeal, completed the process of filing their responses with the court on Friday.
Mutharika and MEC want to persuade the seven-judge panel of the Malawi Supreme Court of Appeal in the substantive appeal matter to overturn the Constitutional Court’s judgement, which if successful, would see Mutharika continuing governing Malawi.
Lawyer Khumbo Soko, spokesperson for Chilima’s legal team, said in an interview Friday that they had completed the process of filing responses with the court to the grounds of appeal the first appellant, Mutharika, and second appellant, MEC, put up.
On his part, Titus Mvalo, one of the lawyers for Chakwera, whose opposition party secured 55 parliamentary seats in the 193-strong Parliament during the May 21 2019 Tripartite Elections, said they had also completed the process of filing the responses to Mutharika and MEC’s grounds of appeal.
On the other hand, lead lawyer for Mutharika, Frank Mbeta, also said in an interview Friday his team was set for the case.
The governing Democratic Progressive Party, whose torchbearer in the May 21 2010 elections was Mutharika, produced 62 legislators, United Democratic Front ushered in 10, People’s Party five, UTM Party four, Aford one and a record 55 independents.
Mwakhwawa also explained that the Supreme Court of Appeal may decline to grant the stay order on the judgement by the Constitutional Court in its entirety, but may stay specific orders the court issued depending on how the case would be argued.
In an amended notice of appeal, Mutharika argues that judges of the lower court erred in law in abandoning settled principles of law governing the annulment of a disputed election or effect of an irregularity on the overall result of an election as pronounced by the Supreme Court in a number of cases he cited.
The President argues the judges erred in law and in fact in holding that in the 2019 presidential election, there was an undue return and an undue election of the first appellant without any evidence of alternative results showing that the returned results of the election of the first appellant to the office of President of the Republic were false.