Judges say electoral matters implicate human rights: Malawi court hailed on Malawi poll fraud case continuation

A local governance expert  and opposition leaders have hailed Malawi’s constitutional court  for quashing an application by President Peter Mutharika and the Malawi Electoral Commission (MEC) to throw out the referral case by Malawi Congress Party (MCP) president Lazarus Chakwera and UTM Party leader Saulos Chilima who are disputing the May 21 presidential poll results.

In an interview with Nyasa Times, Makhumbo Munthali a human rights and governance commentator, said a panel of five judges ruling that the courts should hear the case is a victory for democracy.

“The Court path should be viewed in this stalemate as one critical avenue in validating or invalidating the Presidential election outcome as such both parties need to cooperate and give the Court a chance to administer justice,” said Munthali.

President Mutharika, who narrowly won the election last month, had applied to have the court application by two opposition parties thrown out.

But the five judges hearing the matter – Healey Potani, Mike Tembo, Dingiswayo Madise, Ivy Kamanga and Redson Kapindu – said the case could continue and set June 26 as the date for a full hearing.

In their determination on preliminary objections, the judges observed that currently in  the absence of clear rules of procedure governing the form of electoral petitions under the Presidential Parliamentary  Elections Act (PPEA) and under the CPR, 2017, the Constitutional  Court considers that “since electoral matters generally implicate human rights under Chapter 1V of the Constitution, the Court is bound to adopt a broad and generous approach that favour access to electoral justice instead of  unduly restricting it by judicial unbacked by clear rules under statue.”

Commenting on the outcome, governance expert Munthali said: “I think it is in the best interest of both MEC (and DPP) and the opposition that the case should continue. At the end of the day this will partly help in answering the question as to whether the election was rigged or not.”

Munthali told Nyasa Times that if the Court decides to discontinue the case based on technicalities this will mean that the substance of the matter will remain unresolved.

“And people will still hold the perception that the election was rigged. That’s how I see it. At the end of the day it is in public interest that the case is pursued to the logical conclusion,” he said.

One of MCP’s lead lawyers, senior counsel Mordecai Msisha said  DPP’s lawyers had immediately raised an application to appeal the ruling but the court said it will hear the grounds for the application while proceeding to set aside hearing for the case on June 26 2019.

Munthali said: “For DPP and MEC they need to know that allowing the Court to pursue the substance of the case to the logical conclusion will also help them in validating or invalidating the outcome of 2019 Presidential elections. If the Court does not find any (serious) evidence of rigging, this would in one way or the other strengthen Mutharika’s legitimacy to govern. Otherwise, DPP’S and MEC’s decision to challenge the continuation of the case may raise some questions or suspicion, and in some way validates claims that the election was rigged.

MCP leader Lazarus Chakwera hailed the ruling describing it as a sign that justice will prevail.

“We are very happy with the ruling and we will be proceeding with the case. They have been given leave to appeal, but that will not stop the process,” he added.

UTP Party leader Saulos Chilima, the country’s immediate former vice-president who fell out badly with Mutharika while serving as his deputy, said in his briefing of journalists and supporters: “The applications to have our cases dismissed have been dismissed, so we have won the case.”

Mutharika was declared winner with 38 percent of the votes trailed by Chakwera with 35 percent and Chilima with 20 percent.