Some Malawians have taken to the social media asking High Court Judge Healey Potani to recuse himself from handling matters of consolidated case Malawi Congress Party (MCP) president Lazarus Chakwera and his UTM counterpart Saulos Chilima have filed against the Malawi Electoral Commission (MEC) to be held in constitutional court.
Chief Justice Andrew Nyirenda has certified the electoral case as constitutional matter and set up a panel of five judges to hear it which includes justices Healey Potani, Mike Tembo, Dingiswayo Madise, Ivy Kamanga and Redson Kapindu.
However, commentators have noted that judge Potani should not have been included in the panel as he previously recused himself from handling an elections case because Potani’s younger brother, Harris, works at electoral body as deputy chief elections officer responsible for operation.
Posting on Facebook, social-political commentators Stanley Onjezani Kenani and Rhodrick Kalumpha argued that justice must be seen to be done, saying Potani found it as a basis for recusal in one matter of elections and doesn’t look well to continue in this one.
The stated that Potani had set precedence when he recused himself in an earlier elections case and felt he needed to do the same in the current matter to avoid compromising independence of the Judiciary.
During the 2014 elections, when Potani opted out of the case, High Court appointed Justice Kenyatta Nyirenda to take over Potani’s task.
After controversial results of May 21 Tripartite Elections, MCP and UTM had separately filed cases with the High Court calling for annulment of presidential election results claiming they were rigged.
But Judge Charles Mkandawire said having perused through the two petitions and their supporting documents, he had observed they were similar in nature and relate to common question of law. He then consolidated the cases into one application and also be heard by one court.
The two opposition leaders separately filed their applications with High Court Lilongwe District Registry last week challenging results of the May 21 presidential election in which governing Democratic Progressive Party (DPP) President Peter Mutharika was declared winner with Chakwera and Chilima coming second and third, respectively.
But Mkandawire further observed that the two cases arose out of the same transaction; as such there was no good and sufficient reason to continue hearing them separately.