Mist surrounds the certification of a constitutional matter where the opposition Democratic Progressive Party (DPP) is seeking the nullification of results of the 23 June 2020 fresh presidential election, which incumbent President Lazarus Chakwera of the Malawi Congress Party (MCP) and Tonse Alliance won against former President Peter Mutharika.
On 5 August 2021, former Attorney General Charles Mhango of Mhango & Company, who is one of DPP’s lawyers, told Nyasa Times they had complied with all the requirements for the certification of the matter and they were only waiting for the Chief Justice Andrew Nyirenda to certify it as a constitutional matter.
Mhango said the Office of the Chief Justice had informed them (DPP) on 29 July 2021 that the Chief Justice was satisfied with the referral from Justice Dingiswayo Madise of the High Court. He disclosed that they were asked to file the necessary certificate for the Chief Justice’s signature and subsequent appointment of constitutional court judges to hear the matter.
“In compliance with the request from the Honourable Chief Justice, we filed the necessary certificate on Friday, 30 July 2021,” he said.
However, slightly over two weeks after the certificate was filed by the DPP lawyers, the Chief Justice has not yet certified the matter. When Nyasa Times contacted Mhango on Tuesday, 17 August 2021, he said the Chief Justice summoned the lawyers from both parties on Monday, 16 August 2021 to appear before him.
“The Honourable Chief Justice wanted Counsel for the parties (State and DPP) to clarify some aspects of the case. We clarified and he promised to revert to us in seven (7) days, as he also has some SADC engagements this week,” said Mhango in a brief response.
Malawi is hosting the 41st Southern Africa Development Community (SADC) Heads of State and Government Summit in Lilongwe.
The DPP is asking the courts to quash the results of the said fresh presidential poll after it emerged that four Malawi Electoral Commission (MEC) commissioners were illegally appointed by the former President, Mutharika despite having managed and certified the election and its results.
On 2 June 2020, Justice Kenyatta Nyirenda agreed with the Malawi Congress Party (MCP), which had sued the presidency over the matter, that commissioners Linda Kunje, Jean Mathanga, Arthur Nanthuru and Steve Duwa were illegally appointed and as such he invalidated their appointments.
Following Justice Kenyatta’s ruling, the DPP approached the courts to nullify the election of President Chakwera, arguing that if the commissioners the ruling follows that there was no commission when the fresh presidential election was held. The DPP also contends all the subsequent parliamentary and ward council by-elections that were managed by these concerned commissioners are null and void.
The DPP is seeking “consequential orders and directions that the status of the presidency of the Republic of Malawi reverts to the position it was prior to the appointment of the inquorate and unconstitutional seventh cohort of the Malawi Electoral Commission”, basing their application on Section 75 of the Constitution, which talks about the composition of the electoral commission.
But when the matter came before Justice Madise, he observed the DPP application raised “serious constitutional issues” and therefore referred the matter to the Chief Justice for certification as a constitutional matter and empanelling of judges.
A legal expert who spoke on condition of anonymity wondered why the Chief Justice “is ignoring the clear provision of the law”, which requires him to certify the matter within seven (7) days after receipt of the referral.
“The consultations, which the Chief Justice had with Counsel of the parties on Monday, were supposed to take place way back if at all they were necessary,” he said.
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