Chilima’s lawyer says Malawi not anybody’s farm: ‘Constitution order on trial’

Lawyer Dr Chikosa Silungwe representing the country’s estranged Vice-President Saulos Chilima—who contested the May 21 2019 presidential race on a UTM Party ticket— has told the Malawi Supreme Court of Appeal  that an appeal by President Peter Mutharika and Malawi Electoral Commission (MEC) against a Constitutional Court  (ConCourt) judgement that overturned  the  presidential election must fail on merits.

Dr Chikosa Silungwe: Malawi is on trial, constitutional order is on trial
Vice-President Saulos Chilima—who contested the May 21 presidential race on a UTM Party ticket seen at the Malawi Supreme Court.-Photo by Lisa Kadango

The ConCourt in February annulled the results of the May 2019 poll and ordered a re-run, citing “grave” and “widespread” irregularities including the use of correction fluid  – Tippex – on tally sheets.

Presenting his submission to a panel of seven judges which comprises Chief Justice Andrew Nyirenda, Justice Edward Twea, Justice Anaclet Chipeta, Justice Anthony Kamanga,  Justice Frank Kapanda,  Justice Rezine Mzikamanda and Justice Lovemore Chikopa,  lawyer Silungwe asked a question on the expectation of public institutions and Constitutional order.

“Malawi is not anybody’s farm,” Silungwe in his distinctively calm and cool voice  said in a court hearing that was broadcast live by Times Radio.

“Malawi is on trial. The Constitutional order is on trial,” he asserted.

Silungwe, with his colleague Marshall Chilenga in courtroom, said they are respondents in the appeal preserving the constitutional order.

He further has asked the Supreme Court that it should uphold the consequential orders that were made by the ConCourt  which included  reverting the presidency—including the Office of the Vice-President—to the May 2014 election status of Mutharika as President and Chilima as Vice-President.

Silungwe invited the Court of Appeal to also make its consequential order on President Mutharika that he should dismiss the electoral commission “on account of incompetence and capability”  within seven days of judgement.

If he doesn’t, it should be considered that MEC Commissioners – including its chaierpson Jane Ansah – have been fired automatically.

Silungwe also asked the Supreme Court of Appeal to take “judicial notice” of the fact that President Mutharika withheld assent to four election-related bills that Parliament sent for his nod including that he would not fire MEC commissioners who the ConCourt  found to be incompetent and ordered Parliament’s Public Appointments Committee (PAC) to further assess their fitness. The committee recommended that they be sacked.

In his submission, quashing the appellants arguments against ConCourt determination on   50 percent plus one vote rule, Silungwe said the “purposes of an election is essential feature of a democracy,” hence “majority cannot be greater than;  but majority must be 50 percent plus one.”

On irregularities, Silungwe said it simply means “non-compliance”  with the law and all evidence of the petitioners in the presidential dispute case pointed to that narrative.

“We cannot have mitigating factors to clearly statutory provisions. If the law does not provide constituency tally centre, we should not create one.

“MEC committed a lot of breaches not only against Presidential Parliamentary Elections Act but also Electoral Commission Act,” he  said.

Silungwe said the appellants are trivializing constitutional provisions when it was clearly established that that no originals were used in the elections,  and that duplicates were used, fake sheets were used; tippexed sheets were used, in a number of cases no log books were used, presiding officers and assistant presiding officers never signed results sheets and log books.

He said the ConCourt did not overstep its jurisdiction when it made consequential orders, citing the “effective remedy” in Section  46 (3)  of the Constitution which stipulates  what may happen in place of violations of the laws governing elections in the country.

In the case, MEC and President Mutharika of Democratic Progressive Party  (DPP)are challenging the February 3 2020 judgement of the five-judge panel of the High Court of Malawi sitting as the Constitutional Court which nullified the presidential election, citing irregularities in the results management system.

The lower court also ordered a fresh presidential election within 150 days of its judgement.

The Constitutional Court judges comprising Healey Potani, Ivy Kamanga, Dingiswayo Madise, Mike Tembo and Redson Kapindu annulled the election, saying Mutharika was not duly elected.

Meanwhile,  the Supreme Court has adjourned after hearing arguments from appellants and respondents.

Chief Justice Andrew Nyirenda has said judgement will passed at a later date.

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Maliki
Maliki
10 months ago

kodi a silugwe ndi aja anali ndi dreadlocks aja?Where is Allan Ntata Guys?

Malawi belong to the citizens

I love my country so much, whether DPP wants or not the judgement will not favour them. DPP and MEC are fighting a losing battle.Tippex was too much.The judges angokwaniritsa lamulo kumva zodandaula za MEC and DPP. Koma palibe chabwino chomwe ataphulepo apa.If it happens that the judgement will favour MEC and DPP, it will mean that bribes has happen again.Tippex was too much.From MEC commissioners themselves,tippex was used without following election rules.The truth is that MEC and DPP will lose this appeal again coz it is their behaviour of losing. MEC and DPP are just buying time to put… Read more »

Mangochi Kabwafu
Mangochi Kabwafu
10 months ago

I understand the Americans will be flying their citizens out of Malawi. Any news as to whether old squatter at sanjika will be shipped out as well? At least that would save him some embarrassments of losing the coming elections.

Aphiri
Aphiri
10 months ago

mwachulukapo ma lawyer apa. we are following

Malume Chakwelagalu
Malume Chakwelagalu
10 months ago

Chikosa and Chilenga fodya uja wachamba safunika kusuta ukulowa mu court..yours was the weakest defence….did you take time to read the judgement before crafting your arguments? Pano musova

William
William
10 months ago

These are one of the best lawyers in the country..kumpanda nzeru mpake anthu amakuchindirani mkazi inu

Ban Wera
Ban Wera
10 months ago
Reply to  William

Mmmm Chikosa is not a good lawyer by all.means..Being a PhD holder doesn’t equate to a good lawyer

Anguye kwachele
Anguye kwachele
10 months ago
Reply to  Ban Wera

Then define tembenu and mbeta. Manyaka eni eni.

Malume Chakwelagalu
Malume Chakwelagalu
10 months ago
Reply to  William

Inu paja munapezelera mayi anu akuchindidwa eti

bandafred9@gmail.com
10 months ago

Pachiphwisi

Master
Master
10 months ago

Malume, how do define a judge like Jane Ansah, am sure she was promoted via sexual transmitted promotions very shameful, u degrade silungwe yet he made history by winning elections case that had Malawi on global limelight, u can never boost your CV than this kaya

WaWa
WaWa
10 months ago

Malawi is not anyone’s backyard but Chilima wants to make it his own backyard. Chilima is a power hungry betrayer. Chakwera should beware this power hungry man Chilima must destroy your career to be the President.

Zamkhutu
Zamkhutu
10 months ago

You DPP salvages, if we may ask since when you did you know that judges are corrupt.You have already forgotten that your corrupt justice Lovemore Chikopa was the one who worked with your corrupt Thom Mpinganjira and miserably failed to corrupt the five Con court judges.If you have started crying like this while still in Government, what more when you will be out of Government after fresh presidential elections.

Petro
Petro
10 months ago

Petulo Muthalika whether you like it or not but stil you’re parking your things and leave the palace!period

Mr Truth Pains
10 months ago

U are a star Mr Silungwe in your presentation, u did your best by highlighting the facts of irregularities according to the Law.

In brief and I quote ” irregularities means non compliance with the Law” , end of quote.

Ndiye mfunatso umboni wina a MEC and Jane Ansah with Peter Muntharika???????
That was just hammering the last Nail on the coffin.

Mzgambulo
Mzgambulo
10 months ago

In his speech last week, during swearing in ceremony for new high court judges, the chief justice Andrew Nyirenda conceeded that his judiciary was corrupt and cannot deliver justice to Malawians. So don’t expect justice from the supreme Court, all they do is demand bribes and build mansions. Ine kudabwa judge akulandila k3million pamwezi koma a kumanga ma flats worth k100m in just one year. These corrupt judges deliberately rule against government and order it pay costs which they benefit by receiving kickbacks’. They have even specialised in ruling against the government coining the phrase ‘govt never win a case’… Read more »

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