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

April 15, 2020 Zawadi Chilunga - Nyasa Times 52 Comments

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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52 replies on “ConCourt erred to use dictionary in interpreting ‘majority’ as 50+1, argues Mutharika lawyer”

  5. 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.

  6. 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 guy with the majority of oranges regardless how many more anyone else comes to take. Similarly.. votes are 100%..because it say the winner should amass majority if the votes casted ..it means majority of the 100% ..in this case MAJORITY can not be 50% because the other person can have 50%..therefore the percentage that guarantees that the person has wom and that noone else even if they combined they’re VOTES would became winner is 50.000001% for those who would understand , is secondary school language 50+1%, I’m chichewa multi mavoti ambiri purpose snake.. but that’s not what’s in the law..” highest number of VOTES amongst candidates” is different..

  7. ” 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 HAVE SIMPLY STATES THAT ” THE CANDIDATE WHO RECEIVES THE HIGHEST NUMBER OF VOTES IS THE WINNER”. IN THIS CASE THE MAJORITY IS FOR MAJORITY OF THE VALID VOTES CASTED. VALID VOTES CASTED ARE 100% , AND 50 IS HALF, ANYTHING LESS THAN 50 IS MINORITY, ANYTHING MORE THAN 50 IS MAJORITY. 51% onwards is MAJORITY and 49% is minority. 50% is the halfway.

  8. 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.

  9. 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

  10. 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 without being ambiguous to require somebody to interpret what majority meant. Over and above why did they not provide for runoff. People like Kanyongolo Kanchedzera, George Phiri, Marisa and danwood Chirwa had been pushing for the passing of such a bill . Why did they not just tell us prior to the concourt interpretation that the 50+1 was already in the constitution. They only started changing after the ruling. There were numerous law conference on the same in which Modecai and Kasambala were present yet not of them said at such conference that the 50+1 was already in the competition. Why waste time with something which was already there. Malawians stop being stupid.

  11. They are afraid of 50+1 simply because if they both fail to get 50+1, it’s difficult for the rulling party to plan steal or do tricks cz nthawi ndiochepa ndithu between first voting and voti ya chibweleza.

    Dzanja Lalemba..

  12. The Supreme Court will make its determination snd all of us will hear..i see so many judges here with empty heads..you have already forgotten that you studied humanities…today you are interpreting the law..shame on you

    2. Exactly what I was telling my young brother. People who did not have even a single module in law are busy commenting on legal matters and in the process embarrassing themselves. One can clearly see their ignorance in respect of how the law works by the their shallow and unsupported arguments.

    4. Tell them my dear!! The emptiest head I suggest is that of the author of this empty article!! These zombies don’t know that the dictionary imanenedwa ndi ConstCourt siimene akuinena iwowayi, but “the law dictionary”!! Kutelokotu they were busy checking in …………………….!! God have mercy!!

  13. How do you cite the authority of the same ruling that is under dispute? He should have cited another ruling to back up his point…Ooooh boy!!

  14. Mlandu wa 50+ 1
    This matter is already in the books of consitituion of Parliament and the court is there just to remind Mec and Dpp lawyers.

    1. muziva ndi chingelezitu i chi 50+1it was not official on the laws koma ma judge5 aja anayitenga 50plus one kukhalambali yamulandu umene amagamula

      1. 50+1 was not part of the judgement. It was a recommendation by the judges. Thats why the issue was reffered to parliament for discussion. Ikanakhala judgement bwenzi italowa kalekale without even taking it to parliament. Just wait for another Nyenkhwe on this.

    1. None asked the court to determine on 50+1, that issue was already dealt with by Supreme Court before. Parliament also defeated that issue. The court cannot and is not supposed to make laws or force another branch of government to.That was just Tumbukarisation of things by the highly nepotistic High court of Mbwengus. seating as a sham Concourt. We all know Tumbukas have wanted 50+1 since day one. They fail to get it through parliament and try to force the play through the court.

      1. Zikugwirizana bwanji ndi atumbuka apa? Osamapita ku school bwanji! Just wait for another nyenkhweee

      3. Kkkkk arguments without facts. Parliament was requested to pass laws for rerun procss whenever theirs no candidate who gets 50 plus1. But Nyekhwe busy castigating other tribes. This is not about tribes but facts, You might hate and victimise a certain tribe in short to medium term but in the long-term you will regret the consequentials of your hate.

  16. Whatever the case MEC has already started rigging the forthcoming election in favour of DPP. Why is MEC, instead of the political parties, shouting hoarse encouraging people to go and register. The answer is simple. Data for the newly registered as well as that for those confirming their voter registration is going straight into MEC rigging scheme.
    Remember the DPP strategy to buy ID’s was foiled. What a better opportunity to get those numbers than by calling people to go and confirm their voter registration? People obviously take their ID’s with them.
    Beware Opposition.

  17. concourt is very powerful in the judiciary. even forced the supreme court to sit in Lilongwe. what better place to hear the case than Lilongwe registry where the opposition can influence the proceedings. Lilongwe registry is now known for a string of questionable mcp victories…..

  18. Looking at this matter from a neutral point of view, Concourt indeed errored. Mulandu umapita ku court sunali wokhudza 50plus 1. petitioners did not even argue against Constituency tally centres. It was surprising, therefore, for Concourt to bring these issues in their judgement.

    1. Sir,50+1 is not in the judgement! It is part order given as one of the direction to avoid the same mistakes in future Elections please. DPP and MEC are still making mistakes by sticking themselves to 50+1 as part of the judgement. If they can go to Court with an argument depending on the 50+1, Sir I can assure you, they will come back with their hands by the head.
      Read the judgement again. At first the DPP wanted the whole Election to be null including for the MPs and Councils remember? What happened?

    2. Did you listen to Prof Msiska arguments? It was angelic by all standards. That old man is a genius.

    3. you are the one who is been errored with this story because the judgment sanaitengere pa 50+1 ayi koma ma judge ananena kuti ma mp akakambilane za 50+1 kuti idzigwiritsidwa ntchito than majority rule issue apopo even ma layers a dpp akufoila papenepopo

    4. You idiot!! The 50%+1 is part of the remedy the ConCourt was mandated to give. ConCourt is at liberty to propose appropriate remedies. Moreover the petitioners also argued that Mutharika did not get the majority. It is at that point that ConCourt had to define majority and make reference to earlier erroneous ruling on the same by the Supreme Court. If you are daft, don’t comment on complex matters, idiot!!

  19. I have always said the concourt made their case and ruled on it. For goodness sake did Chilima ask the court to reinstall him. Did any of the petetioners request for the interpretation of majority. Did any of the petetioners moved ask the court to order parliament to enact laws.

    2. May be you wanted to say, “MEC and APM will seek the use of coronavirus pro-longed lockdown to stop the presidential elections from taking place???”.

    3. You wanted to say that Msonda, Dausi and the entire DPP will this time around demonstrate against the judiciary

    1. The difference is only that, one of them is the head and the other one is the tale of the same Snake. If you don’t know then that will be your own problem, but the majority including your heart knows this.

  22. Akuti lock down for 21days and at the same time go and register to vote, kodi mitu yanu ikuganiza bwino pamenepo a president and the team of your cabinet including MEC???

    I don’t understand your logic here , may be u need to school me otherwise you are all vision less. What kind of Lock down which allows registration to continue??

    Having unsound mind is indeed big madness

    1. you are so wise, bro. But if you can hold on just for a while you will discover in a moment that actually you are one of those with a skull that is so empty and can’t equal any of those making decisions now.

  23. Its a fact Dpp is Mec and Mec is Dpp how can they file same / similar issue to supreme court? ndiye kumanama Mec is independent, mukunamiza ana chani?

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