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.
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.Follow and Subscribe Nyasa TV :