Chief Justice Andrew Nyirenda has finally certified as a constitutional matter a case 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.
Former Attorney General Charles Mhango of Mhango & Company, who is one of DPP’s lawyers, confirmed to Nyasa Times about the Chief Justice decision on Monday, August 23, 2021, saying the Chief Justice has since referred the file to the Judge President Sylvester Kalembera to empanel the Constitutional Court.
What it means now is that Malawians should expect another protracted legal battle that may either change the course of politics in Malawi where the incumbent President may lose his position should the case go in favour of the DPP or the status quo may remain the same should the Constitutional Court throw out the DPP suit.
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, who earlier heard the DPP petition in 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,” Mhango told Nyasa Times recently.
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 the Constitutional Court.