The High Court in Lilongwe has rejected an application by disgruntled district chairmen of Malawi Congress Party (MCP) who asked the court to subpoena the party’s Secretary General Gustave Kaliwo and his deputy James Chatonda Kaunda in case which they were calling for an early convention in protest of party president Lazarus Chakwera’s style of leadership.
Lawyer representing the disgruntled chairmen, Wesley Namasala applied to the court to subpoena Kaliwo, who is also first respondent and Chatonda Kaunda to come and testify in the court as there was some issues that arose during cross examination and required the testimony of the Secretary General.
Some of the issues which Namasala said needs Kaliwo and Kaunda clarification were whether the Secretary General received a petition calling for an emergency convention, the composition of District committee, whether the MCP has ever had an emergency convention and the procedure that was followed and whether the composition of the current National Executive Committee is unconstitutional as alleged by the applicants.
But lawyer representing MCP ,Wapona Kita opposed the application, arguing that the burden of proof in the matter lies in the applicants and thee respondents can’t be compelled to support their case where it’s not made out by their witnesses and prayed to the court to dismiss the application with costs.
While agreeing to Namasala that court has power to subpoena any person under order 32, ule 7 as read wth order 38 of the rules of the supreme Court ,Justice Charles Mkandawire said the orders are discretionary.
In his ruling, Justice Mkandawire said the applicants gave very detailed testimony about how MCP operates as several others told the court how long they have been in the party and that it is not strange for them to call for an emergency convention as they had been done before when there was power struggle between John Tembo and late Gwanda Chakuamba .
“Having looked at the totality of the facts in this case , I find that the summoning of the Secretary General of the Malawi Congress Party and his Deputy to be ‘unattainable’,” Justice Mkandawire said in his ruling.
Justice Mkandawire said there court does not need the evidence of the first respondent (SG Kaliwo) in order to appreciate the composition of the district committee.
“The court does not require the evidence of the first respondents in order to decide whether the current National Executive Committee of Malawi Congress Party is unconstitutional. These are things can be verified from the Malawi Congress Party constitution. The respondent is certainly not an authority on this. The authority is the Malawi Congress Party constitution,” ruled Mkandawire.
Justice Mkandawire added:”The burden of proof here is on the applicants and thee applicants only”.
According to Mkandawire in his ruling he said to compel Secretray General of MCP and his Deputy to come and give evidence in the circumstances wluld be equal to assisting the applicants to prove their case which he said it would be unfair.
“I therefore find no merit in this application and I dismiss it with costs,” he ordered Justice Mkandawire.
In May this year, some MCP officials—including district chairpersons and committee members—dragged the party to court, demanding an emergency convention asserting serious irregularities over how Chakwera runs the party and appointed some national executive committee (NEC) members.Follow and Subscribe Nyasa TV :