ConCourt erred to use dictionary in interpreting ‘majority’ as 50+1, argues Mutharika lawyer

Malawi Supreme Court of Appeal on Wednesday morning started hearing the appeal case which President Peter Mutharika and Malawi Electoral Commission (MEC) filed against the Constitutional Court Judgement for the re-run of an election in which Mutharika was returned to office last year.

Tembenu: Gave a very categoric answer
One of Mutharika’s lawyers Frank Tembenu arriving at court.-Photo by Lisa Kadango

The five-judge panel , comprising Healey Potani, Redson Kapindu, Ivy Kamanga, Mike Tembo and Dingiswayo Madise, rules that  for a person to be declared winner in an election the person must amass at least 50+1 percent of the total votes cast that constitute majority.

But presenting 16 grounds of appeal against the Concourt ruling of February 3 2020 which nullified the 2019 presidential election, lawyer for President Mutharika, Samuel Tembenu flanked by Frank Mbeta, argued that the issue of 50+1 percent was not in the original pleading of the petitioners for the court to make that determination

“We did not have an issue regarding 50-plus-one in the originating petition,” pointed out Tembenu.

Nonetheless, Tembenu argued that the ConCourt erred to use the dictionary in interpreting the word majority.

According to him the issue of 50+1 is not what majority is but that it means getting more votes, citing an authority ruling of the Supreme Court of Malawi that the majorly  in constitutional interpretation is a person who has obtained more votes – ‘first-past-the-post.’

He told the court that there was an attempt in parliament to past 50-plus-one electoral law but was defeated.

That threshold is a major sticking point for the incumbent, who had been declared winner with just 35.8 percent of the vote.

Runner-up Lazarus Chakwera, the leader of the main opposition Malawi Congress Party (MCP), lost by just 159,000 votes and he has now teamed up with UTM Party to maximise their chances of unseating the president.

UTM leader and ex-vice president Saulos Chilima came third with 20 percent of the votes.

Mutharika has partnered with United Democratic Front (UDF) in an electoral alliance.

Tembenu, a former Minister of Justice and Constitutional Affairs, noted that the ‘majority’ ruling is the “troubling position that the court has given us”.

He also said the ConCourt ruling “creates an absurdity”.

Tembenu submitted to court that the ConCourt ruling “was not justified” to hold that there was a breach of the constitution.

Earlier, Justice Andrew Nyirenda quashed Tembenu’s request that the court should consider skeletal arguments which the first appellant filed late in court.

Nyirenda ruled that would be subject for discussion in due case.

A new election has been set for July 2, although it could be delayed by the appeal and the coronavirus outbreak in the southern African country.

The Electoral Commission has also made its submissions through private practice lawyer Tamanda Chokhotho against the Constitutional Court ruling on similar grounds.

The High Court sitting as a Constitutional Court said MEC failed in all constitutional tests it set out on the elections and that the irregularities were so glaring that the credibility of the election was in question.

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Vilhomwe Ndivimbuli
10 months ago

IWE mbuzi lawyer tamangodyani ndalama za Bakha uyu watha kale

Vilhomwe Ndivimbuli
10 months ago

So where could they get the definition of majority iwe mbuzi lawyer?

Gkay
Gkay
10 months ago

Anthu oipa mitima a Mec . Aaaaaaaa , truth sets free ndipo

Gkay
Gkay
10 months ago

Truth sets free. Zikuwavuta pati awa amazinamiza a Mec-wa. Mzimai oipa mtima Jeneti mmmmm

Martha kamanga
Martha kamanga
10 months ago

Thomas was told that he has worked 30 days in a month of 30 days. However they told him that they will not pay him for the majority of the days that he has worked for. How much should Thomas be expecting to be paid. 10 thieves stole items in a shop, on the first day police announce that they are looking for 10 thieves, on the third day police announce that they cleave caught MAJORITY of the thieves. How many thieves would police be talking about.

Edison Kachulu
Edison Kachulu
10 months ago

It doesnt matter how many candidates are contesting..it doesn’t matter how many oranges people will be asked to share the oranges in the basket. But once u have been asked to take the oranges from the basket mwaumbombo so that noone else take more than you..the starting point of that quantity is the majority. I.e if they’re 10 oranges and u want to be the one with the majority of orange..without knowing how many people will come to take orange the guaranteed majority is 6 oranges..u take 6 out of 10 oranges. And that guarantees that u will be the… Read more »

Yasin Jailosi
Yasin Jailosi
10 months ago

” look at thewe statement to understand majority..Majority of student wrote std8 exam passed..majority of prisoners have been freed due to the corona virus. Majority of passengers in the minibus have crashed. Majority of his was burnt. ” THE NUMBER OF VALID VOTES CASTED ON THE ELECTION DAY FORM 100% OF THE VOTES. THERFORE A MAJORITY OF THOSE VOTES MEANS A MAJORITY OF THE 100%. 50 OUT OF 100 IS NOT A MAJORITY. ONLY ANYTHING OVER 51 IS MAJORITY OF THE VOTES (100%). IF IT WAS AS SIMPLE AS WHOEVER HAS THE HIGHEST NUMBER OF VOTES WINS THE LAW WOULD… Read more »

Nyusesi
10 months ago

Even on internet, the word ” majority” is translated differently if you read from several links. So the Hi5 judges errored in using dictionary or internet interpretation of majority. They should have known that our constitution is silent on 50+1 that’s why we don’t have the rerun procedure in the Constitution. By the way if the appeasement judges feel that we already have 50+1, why is it that we have been using simple majority all these years?

Shame on you opposition concourt judges.

Yaya Mfiti
10 months ago

Abweretsa bwanji chigamulo cha mlandu wachilendo oti palibe yemwe anakasuma za mlanduwo ?anadya ndalama ma judge,Agamula bwanji kuti kuti mwini mwana ndi mzimai wakuba kuti onse alangidwe mofanana pomwe zachidziwikire kuti amene amayenera kulangidwa ndi amene chigamulo chitatuluka kuti onse alangidwe iye anakondwera namwemwetera ,chinyengo chinachitika apa ,anadya ndalama ma judge

Zio ine
Zio ine
10 months ago

I agree with Tembenu that the interpretation was wrong. In the first place to claim that 50+1 is already in the constitution is wrong. Tembenu himself brought the bill to parliament which was defeated. The bill was brought after persuasion from civil society, PAC and even the likes of Ntambo who threatened government with demonstrations if the bill would not be passed and I find it utter useless for somebody to tell me that the 50+1 was already in our constitution. If we are to believe that nosense why would it be difficult for the framers to have said 50+1… Read more »

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