Malawi Electoral Commission (MEC) chairwoman Jane Ansah has filed papers at the High Court against the Constitutional Court’s annulment of last year’s presidential election using a lawyer who has no valid practising licence, State vice-president and UTM Party President Dr Saulos Chilima has submitted to court.
Chilima – the first respondent in the presidential nullification case – in his submission filed by lawyer Khumbo Bonzoe Soko, asks the court to dismiss MEC’s application for suspension of the Constitutional Court judgement cancelling the presidential election and ordering fresh polls.
In his sworn statement, lawyer Soko states that a legal practitioner is only a Commissioner for Oaths if he has a licence issued under the Legal Education and Legal Practitioners Act (the ‘LELPA’), saying Ansah’s sworn statement to court purports to have been signed before Mr Musopa of NBS Bank Ltd who has no licence.
“The said Mr Musopa was not a licensed legal practitioner as at 7th February, 2020. He had no capacity, therefore, to administer an oath,” reads Soko’s submission.
Chilima’s lawyer tells the court that since Ansah’s lawyer does not have a valid licence, technically the sworn statement for the application before the court are “fatally incompetent and must be dismissed.”
Soko contends: “A document only becomes a sworn statement if the deponent takes an oath duly administered by a Commissioner for Oaths.
“Oaths and Commissioners for Oaths are governed by a statute: the Oaths, Affirmations and Declarations Act, (Cap. 4:07) (the ‘OADA’). Under sections 3 and 4 of the OADA, a Legal Practitioner is only a Commissioner for Oaths if he has a licence issued under the Legal Education and Legal Practitioners Act (the ‘LELPA’).”
Soko has also cited authorities where the Courts have held that steps taken by unlicensed legal practitioners are a nullity.
Attorney General Kalekeni Kaphale said it is possible to have the sworn statement “retaken under proper licence holder.”
But through his lawyers, Chilima also argues that the interpretation of the Constitutional Court ruling which remains in force, Attorney General cannot take a partisan role in constitutional litigation.
“He must appear in his own right as an impartial and independent defender and custodian of the Constitution.” he said.
The Constitutional Court ruled, Soko pointed out, that Attorney General is constitutionally disabled from acting in a partisan manner.
“This has the effect of disqualifying the Attorney General from continuing to represent the Electoral Commission in this proceeding, whether before this Court or indeed in any other proceeding,” he argues.
Chilima’s application also states that there is no evidence of authority to file an appeal or set aside the judgement from the electoral body, stating that Ansah, a judge of the Malawi Supreme Court of Appeal, made the decision unilaterally.
It says Ansah“is just the embittered Chairperson of the Commission. She is not the Commission. The Court has already held in this proceeding that the best evidence of a position taken by the Commission is the minutes of its meetings.”
Chilima’s lawyers argue that there are no minutes of MEC commissioners that made the decision to lodge appeal.
“The absence of the minutes must mean that any purported appeal is incompetent for want of authority,” reads Soko’s application.
Chilima, who has been State vice-president from 2014, quit the ruling Democratic Progressive Party (DPP) last year to form the UTM party – formerly known as United Transformation Movement. However, the court ordered him and President Peter Mutharika to retain their positions until new elections are held within 150 days.Follow and Subscribe Nyasa TV :