MEC has not demonstrated interest of justice for stay order — Petitioners

The Constitutional Court on Wednesday resumes sitting to hear an application by the Malawi Electoral Commission (MEC) to suspend the enforcement of the court’s ruling on nullification of the May 21 2019 presidential election pending appeal with petitioners asking that the application be dismissed with costs.

In the case, State vice president and UTM Party president Saulos Chilima was the first petitioner with Malawi Congress Party (MCP) president Lazarus Chakwera as the second petitioner. MEC, on the other hand, was the second respondent and President Peter Mutharika the first respondent by virtue of being the declared winner.

Lawyer Charles Mhango, a former Attorney General, is representing President Mutharika and argues that legal tradition backs the idea that when a case has been appealed, the judgement should not be enforced until the appeal is determined by the court.

He said if the judgement is enforced, the appeal in the Supreme Court will be rendered useless, saying while MEC and Mutharika are waiting for the appeal hearing,  institutions such as Parliament have already started implementing the court orders.

In their application to dismiss the appeal, both Chilima and Chakwera through their lawyers, argue that President Mutharika and MEC have not demonstrated that the interest of justice favours suspending the operation of the ConCourt judgment.

In a sworn statement filed by lawyer Innocentia Nkhoma Ottober, states that MEC has “failed to demonstrate the injustice it would suffer [if] the orders of the court were put into effect.”

Chakwera also argues that MEC should ideally not appeal; saying by appealing the electoral body has lost its neutrality.

“The risk of injustice tilts in favour of refusing the application for suspension of enforcement of judgement since the 2nd Respondent (MEC), as a constitutional body cannot be said to be aggrieved by the judgement of the court.

“The likelihood of the appeal being thrown out by the Supreme Court of Appeal is high given the manner in which the elections were mismanaged by the 2nd Respondent and how Constitutional and statutory provisions were violated,” reads the sworn statement by Ottober.

Both petitioners also argue that the Appellants – Mutharika and MEC – have not demonstrated any potential loss that they would suffer if the stay is not granted.

Women Lawyers Association also contend that the appellants must demonstrate that injustice would be occasioned if the stay is not granted.

It is not enough to argue that monumental sums of money would be spent in preparing for fresh elections, they contend

The petitioners also argue that MEC feel concerned on behalf of Parliament when legislative body is ready to implement the court judgment and has already taken steps to implement the ruling.

The court will make its ruling by 4 pm, according to Judge President Healey Potani.

The Constitutional Court ruling established that the 2019 voting process had been marred by serious irregularities.

The electoral commission had also failed to address complaints before announcing results. Tally sheets lacked monitor signatures and several accepted tally sheets that had been corrected using Tipp-Ex.

The court annulled the election and called for fresh elections within 150 days from February 3 2020. Equally important, it established that parliament should move to properly enact section 80(2) of the constitution, effectively changing the Malawian electoral system.

That means a president will need a 50+1 majority of votes. Simply winning more votes than your competitors will no longer be enough.

Throughout Malawi’s last parliamentary term, the governing Democratic Progressive Party (DPP) actively tried to frustrate any attempts at such fundamental electoral reform.

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