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.

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.