Fresh elections challenge not yet certified, DPP optimistic of success

The opposition Democratic Progressive Party (DPP) is optimistic the nullification of the 23 June 2020 fresh presidential results will commence soon following the Office of the Chief Justice payment request for the issuance of the Certificate.

Former Attorney General Charles Mhango of Mhango and Company representing the DPP, told Nyasa Times in an interview on Thursday, 5 August 2021 that they have not received the certification yet from the Chief Justice but they expect it soon.

Charles Mhango: Optimistic of the CJ issuance of the Certificate.

“The Office of the Chief Justice confirmed to us on Thursday 29th July 2021 that the Honourable Chief Justice was satisfied with our referral from Honourable Justice Madise and therefore requested us to file the necessary Certificate.

“In compliance with the request from the Honourable Chief Justice, we filed the necessary Certificate on Friday, 30th July 2021,” said Mhango, adding that as prosecuting lawyers, they have satisfied their part and what remains is for the Chief Justice to sign the Certificate and appoint the judges.

The DPP asked the courts to nullify the 23 June 2020 fresh presidential election results and the results of subsequent by-elections on the basis that four Malawi Electoral Commission commissioners were illegally appointed by former President Peter Mutharika.

In a High Court judgement of 2 June 2020, Justice Kenyatta Nyirenda invalidated and terminated the appointments made in 2019 of four DPP commissioners – Arthur Nanthuru, Steve Duwa, Jean Mathanga and Linda Kunje – saying the law required [former] President Mutharika to appoint six commissioners, three each from the DPP and Malawi Congress Party (MCP).

Instead, Mutharika only appointed two commissioners from the MCP while DPP provided four. The move was ruled illegal and unconstitutional in relation to Section 75 of the Republican Constitution.

MCP Secy General & Foreign Affairs Minister Eisenhower Mkaka

The MCP through its Secretary General Eisenhower Mkaka sued the ‘presidency’ to correct the anomaly. Judge Kenyatta agreed and signed the dismissal of the four commissioners.

Following the Justice Kenyatta’s ruling, the DPP moved the courts to nullify the results of the 2020 fresh presidential poll and subsequent by-elections, arguing they were managed by ‘illegal commissioners’.

Should the matter go in favour of the DPP, President Lazarus Chakwera, who was elected during the fresh presidential election and all Members of Parliament (MPs), and Ward Councillors elected during by-elections under the illegal commissioners would lose their positions.

The DPP seeks “consequential orders and directions that the status of the presidency of the Republic of Malawi reverts to the position it was prior to the appointment of the inquorate and unconstitutional sevenths cohort of the Malawi Electoral Commission”.

A few days after the DPP filed the application with the High Court, Judge Dingiswayo Madise referred the application to the Chief Justice for certification as a constitutional matter and appointment of constitutional Judges to hear the matter. It was Judge Madise’s determination that the DPP application raised serious constitutional issues, hence referring it to the Chief Justice for certification.

Meanwhile, some quarters have expressed concern over “delay by Chief Justice in certifying the matter” arguing that according to Order 19, Rule 3 and 4 of the High Court Procedure Rules 2017, it is provided that “the certification by the Chief Justice SHALL be made within 7 days from the date a proceeding is filed before or a referral to him for such certification”.

But a legal expert has said while the ball is now squarely in the Chief Justice’s and that he is compelled to empanel a constitutional court, he may have some technical issues to deal with, including the identification of Judges to constitute the constitutional court.

“One thing is for sure; this is not a small case; Judges will have to be 100 percent willing to sit on this court. Otherwise, one may not rule out some judges being unwilling to take up this challenge for various reasons.

“So, in that case, my opinion is that the Chief Justice may not append his signature to the certificate until he has assembled the required number of judges to hear the matter,” said the legal expert on condition of anonymity.

However, he said there are legal tools available to use if some think the Chief Justice is deliberately delaying the process and that it is in conflict with the law. He said Chief Justice is a constitutional position and if some people think he is delaying, they can force him to do what is required of him according to law.

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Nguwo Yobwereka
Nguwo Yobwereka
1 year ago

Oh really , so it can be a nightmare for certain guys! What a brief honey 🌙

patriotic writer and reviewer

This animal called politics if not properly regulated by the citizenly and civil society organisations will expose further the vulnerability of the already poor malawians. The cost implications of such move by power hungrly political dogs will make Malawi even poorer. We as Malawians have no time and resources to bring back thieves and nepotistic vagabonds. Do we have such luxury money to spend? Why not channel that money to Covid 19 pandemic. I urge or judiciary to remain awake not not entertain such nonsensical moves by these vultures.

Makatani Parties
1 year ago

Mbuye wanu amanyoza ma khoti lero akufuna ma khoti omwewo. Ukalamba sizinthu. APM messed up with the appointment of the commissioners and wants the courts to clear his bibi. Yakuwona yeleyo?

Black berry
Black berry
1 year ago

This is an excercise in futility. The illegal commissioners were appointed by APM. I doubt if the court will allow APM and his party to benefit from their illegality

Kokolikos
Kokolikos
1 year ago
Reply to  Black berry

By accepting to run for elections under the electoral commissioners, MCP must have implicitly accepted that the electoral commission was legal. The argument made here against DPP has an equivalence against MCP. MCP can not benefit from the same illegal commissioners it FIRED!

Tadala
Tadala
1 year ago

We already have a precendence on this. After nullifying the 2019 elections, the decisions made by Chimulirenji as vice president were not deemed void and their effects reversed. The courts indicated that all decisions Chimulirenji made were valid hence this time the courts cannot invalidate the decisions made by the fired members as commissioners. Were they not exercising their duties as commissioners. Were they not drawing allowances and benefits as commissioners. You need to prove that these people were not working as commissioners not mere on wrong appointments but the actual discharge of duties to satify the claim of section… Read more »

Kokolikos
Kokolikos
1 year ago
Reply to  Tadala

The Presidency can not be vacant under the circumstances that applied. These are different issues.

Tizgowerengewaka Mughogho
Tizgowerengewaka Mughogho
1 year ago

DPP optimistic, maloto achumba!

moya
moya
1 year ago

this means then that the election of 2019 was again illegal mmmmmmh iligal elections all over. dpp lets go and fight our last dying kick because these are kicks of dying horse. why cant you put your house in order?

Anzelu ndi Anzelu
Anzelu ndi Anzelu
1 year ago

This conundrum is a result of Chakwera ignoring the legal advice of former Attorney General Silungwe. The AG told Chakwera to leave the Commissioners as they are because they had conducted the rerun well and removing them for the previous misdeeds opens a can of worms like we have now.

Truthful
Truthful
1 year ago

I think you didn’t follow what happened. This has nothing to do with Chakwera and Attorney General. It is MCP that went to court. The commissioners were removed by the court. They were not fired by Chakwera. The firing had already backfired. Don’t mix two different issues.

Jima
Jima
1 year ago
Reply to  Truthful

Some comments don’t really make some sense. You say MCP went to court fine. Can they go to court bypassing their leader, who is the president without knowing what was behind the scenes, the the president is the one to blame, if he the president had taken some legal advice from his Attorney General, who by then was Silungwe, things shouldn’t have reached this point, but the president trusted his fellow politicians by means of hearsay, forgetting that the law overturned elections results in his favour and the same law has already turned against him for lacking proper legal advice.… Read more »

Bisi
Bisi
1 year ago
Reply to  Truthful

As lawyer APM and Mhango know that APM as the source of the case and or the illegality can not benefit/win from his own illegalities!! They are just wasting our time apapaaaaaaaaaaaaaa

Kokolikos
Kokolikos
1 year ago
Reply to  Bisi

It’s not about benefitting APM. MCP likely went ahead with the 2020 elections intending to challenge Tue results on the basis of an illegal MEC but then they won the elections which SMART politics dictated that they stay quite but they didn’t. If APM had appointed an illegal MEC, an honourable Party should have refused to participate in the illegal elections! MCP should have refused to be declared a winner by an illegal MEC. “He who seeks equity, must come with clean hands”. APM would argue that he never appointed an illegal MEC, nobody pointed out that to him when… Read more »

Hawell
1 year ago
Reply to  Truthful

No it is you who do not understand this. MCP yes went to court for equal commissioners in the MEC but according to section 75 does not talk anything of equal representation rather says the president shall appoint a minimum of 6 commissioners and a judge to chair the commission so you should understand this. Secondly you say it was MCP which went to court for this but the consequences are that Chakwera was put into power by “illegal commissioners” their signatures for his presidency are not adding hence nullification of the results. In other words how do you expect… Read more »

Medsonchimudima3@gmail.com
1 year ago
Reply to  Truthful

Hahaha Chakwera fired the commissioners.
MCP went to court to force chakwera to do so.
Mwaziyamba nonkha mkulephera kutafuna, Silungwe anayiwonera patari game.

David
David
1 year ago

Politics really corrupts. Mr Mhango is one of those intelligent lawyers. But he is too much in politics that he stopped thinking. There is no way he can win this case. He knows it. Even if he wins, Laz will continue serving as President until a proper president is elected.

He knows that all illegalities he is talking about now were made by APM. The law is very clear. APM cant benefit from his own illegalities. Period.

Bullshit
Bullshit
1 year ago
Reply to  David

As a lawyer, he is after money from DPP

APm
APm
1 year ago
Reply to  David

Its not about Peter benefiting but the Nation!!!

Ryson Thom
1 year ago
Reply to  APm

Which nation? Isn’t the legal pursuit aimed at taking away the national benefit? DPP has never worked or existed for benefit of the nation – it can’t start all of a sudden!

Sean Kampondaynee
1 year ago
Reply to  Ryson Thom

Neither has MCP existed for the benefit of the nation. This is a party that butchered our relatives in the 31 years of its rule. Today when the MCP was lucky to get back in power, it gave us a cabinet full of husband and wife, brother and sister, niece and nephew, son in law as an aide, daughter as a diplomat, CHEFO kuyitanitsa ma CV from oChewa kuti alembane ntchito kunena kuti ati ndi nthawi yawo yoti nawo a Chewa asangalale, they are all over the land with shaddy deals, corruption, amassing wealth and corrupting our systems. Today Martha… Read more »

Ali Palimandi
1 year ago

Ernest Hemingway, ‘The Sun Also Rises’, 1926. The main character was, this time, BJ. Yes, Mpinganjira! But APM forgot his notes during the final exam!

Nyamata waku mponela ozitsata
Nyamata waku mponela ozitsata
1 year ago
Reply to  Ali Palimandi

Mwakwidzinga masambatu.

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