Court censors MEC for collusion with DPP in Malawi poll case

The Constitutional Court  in the ongoing presidential election court petition case has censored the Malawi Electoral Commission (MEC) for its conduct particularly for appearing to act in collusion with the Democratic Progressive Party (DPP) presidential candidate Peter Mutharika’s lawyers.

This follows the query by lawyers for UTM Party and Malawi Congress Party (MCP) presidential candidates over the alleged partisan role played by Attorney General (AG) Kalekeni Kaphale and the slow pace of the case.

Kaphale’s role first came into question after the AG, who is representing MEC, stood to address the court on a debate about cross-examination while lawyer Frank Fraouk Mbeta  representing Mutharika was addressing the court.

Justice Healey Potani, who forms part of the five-judge panel hearing the case,   said in Tuesday  said MEC  should reflect the position as a neutral arbitrator and  desist from acting in a manner that will suggest that it was colluding with lawyers for Mutharika..

Said Potani: “Another aspect, the overall scheme of these proceedings, the proceedings emanate from the electoral case in which the first, second petitioner, the first respondent took part and the second respondent is a referee. Our position is that the conduct of the second respondent in these proceedings should reflect that position as a neutral arbitrator in these matters notwithstanding that there is some common interest between the first and second respondent.”

He further called on the parties to continuously keep in mind that witnesses should not be asked to provide legal opinions.

He said that cross-examination should be limited to matters in dispute, urging the parties to utilise the newly filed list of matters that are in dispute and those not in dispute.

“Where the issue is about summarisation of figures, we feel there is no point to belabour this in cross-examination because the court has been provided with calculators and will do the calculations. If the parties feel strong to prepare figures,” said Potani.

President Mutharika, who was declared by MEC as winner in the May 21 2019 presidential race, is the first respondent and the electoral body is the second respondent

Menwhile, MEC has not gazetted the May 21 Tripartite Elections  results within the stipulated time, contravening the Parliamentary and Presidential Elections Act (PPEA), according to published reports.

Section 99 of the PPEA stipulates that: “The commission shall publish in the Gazette and by radio broadcast and in atleast one issue of a newspaper in general circulation in Malawi the national result of an election within eight days from the last polling day and not later than 48 hours from the conclusion of the determination thereof…”

MEC director of media and public relations Sangwani Mwafulirwa has  confirmed the electoral body had not gazzetted the results yet but is in the process of doing so, saying “ that does not invalidate the results.”

Law experts said there was no direct implications of the failure by MEC to gazette the election results,saying it could be  a mere ‘formality.’

The May 21 Tripartite Elections were announced by May 27 following the vacating of an injunction stopping the announcement of the presidential poll results, at the High Court Lilongwe registry which had been granted to the MCP days earlier.

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