Mutharika, MEC insist Supreme Court should dismiss Malawi election case on technicalities

President Peter Mutharika and Malawi Electoral Commission (MEC) have asked the Supreme Court of Appeal to dismiss petitions of UTM Party president Saulos Chilima and Lazarus Chakwera of Malawi Congress Party (MCP) challenging results of the presidential race in the May 21 Tripartite Elections.

Mutharika and MEC  through their lawyers on Thursday made their submission to  Malawi Supreme Court of Appeal  against a five-judge panel of the High Court sitting as a Constitutional Court which unanimously dismissed an application to have the petition thrown out for purportedly being “irregular, incompetent and incurably defective”.

The five-judge panel of  Healey Potani, Mike Tembo, Dingiswayo Madise, Ivy Kamanga and Redson Kapindu has already started hearing the elections case but adjourned on Thursday to  to give room to the Supreme Court.

Should the Supreme Court uphold the ruling of the lower court, the matter in the Constitutional Court would proceed on Friday but should the Supreme Court agree with President Mutharika and MEC that the lower court erred to dismiss their application, the current proceedings in the Constitutional Court falls off.

MEC argues in its ground of appeal that the lower court erred by holding that there is no requirement under the law for an election petition to be verified by a sworn statement and by holding that a petition is not a claim in terms of Order 18 rule 2 (1) of the courts (High Court) (Civil Procedures) Rules 2017.

The electoral body  wants the Supreme Court to reverse the High Court’s decision in proceeding with the case on the basis that the petitions, initially filed separately but later consolidated by the court, were filed fraudulently, out of time and without sworn statements.

And making his submission to Supreme Court on Thursday, Mutharika’s lawyer, Charles Mhango, said  the main issue in the preliminary objection, was to decide what would have been the fate if the High Court had decided in favour of the appellants (Mutharika and MEC).

Mhango said it’s the appellant’s view that under section 21 of the Supreme Court act, an appeal can be brought by leave to the court in the nature Mutharika and MEC made.

Another lawyer representing President Mutharika, David Kanyenda, said there are three main grounds of appeal.

He said the proceedings in the lower were both “incompetent and embarrassing” as they were not backed by law and  ought to be struck out.

Kanyenda  further argued  that the lower court lacked jurisdiction to hear the case.

But lawyer Dr Chikosa Silungwe, representing Chilima, stood on an objection to protest Kanyenda’s arguments particularly on citations of the previous arguments by the petitioners but Chief Justice Nyirenda has said the court will be able to spot misrepresentations and make own judgement.

Kanyenda said  that the petitions to the lower court were not accompanied by sworn statements hence did not follow procedures.

He further argued that the spirit of the elections law on the expedition of cases forbids petitioners filing petitions to court and solicit sworn statements later on.

Kanyenda stated that the current law has provided sufficient time for petitioners to solicit sworn statements, unlike the previous regimes which had a considerable harsh regime. He said in solving election issues, urgency is key.

Lawyer Chauncy Gondwe, also representing Mutharika, continued  on the same line of argument, asking the Court: “What remains of a petition which is not verified by sworn statements?”

Gondwe said since there was no proper petition, there was no way the court should have proceeded to hear that petition.

“It’s our humble appeal that this court should decide there was no proper petition,” he said.

Gondwe said  a petition has to be paid for, saying: “If you go through the court record, there is no evidence of that fact, that a petition properly constituted was paid for.”

He said the evidence brought to the constitutional Court of payment for the petition was hearsay evidence. Gondwe said the non-payment for filing of the petition is in reference to the petition by the second petitioner, Lazarus Chakwera.

Gondwe further argued that the petitions were filed outside the stipulated period of filing election petitions.

In view of these alleged irregularities, Gondwe asked the court to reverse the lower court ruling and make an order of costs of the proceedings.

But Silungwe, the lawyer for Chilima,  said the appeal must be struck out with costs.

Senior Counsel Modecai Msisha, representing MCP presidential candidate Lazarus Chakwera also supported  Silungwe, saying the tradition is that matters have to go to Supreme Court when they have been exhausted at High Court.

Said Msisha: “I would urge the court that this matter is still proceeding in High Court and is not ripe to go to Supreme Court.”

However, Chokotho, representing MEC, said  the declaration of elections results was made on 27th May 2019 and under the seven day period rule, the period expired on 3 June, 2019.

He argued that the petition was made on 4th June 2019 hence was irregular and liable to be dismissed.

Chokhotho added that on 4th June 2019, the second petitioner (Chakwera) approached the lower court to include the first appellant (Mutharika). According to that petition, they were amending a petition that was purportedly filed on 3rd June 2019.

“Why did they amend the petition when the previous day they had already made a petition bearing the name Arthur Peter Mutharika?” argued Chokotho.

On filing fees, Chokotho said  it’s MEC’s submission that it was improper that where the essence of the objection was to cite the lack of payment of fees, for the court to take judicial notice instead of objecting to the hearing of the petition.

“It should have been taken as evidence that the petition was not filed. We are of the considered view that the law and rules must be interpreted in such a way that the courts prevent fraud.

“Having received a complaint that the record of the court had been falsified, the court had to be very slow to make presumptions or accept presumptions that credible errors were made where the evidence before the court was very clear,” said Chokotho.

He argued that if the decision of the lower court is upheld, it would open a Pandora box.

“ The issue of the fees should be looked at as evidence that the document in the first place was never brought before the court. That’s the only inference that can be made from the facts.”

The rule allowing waiver of fees is applicable before documents are filed not after, further argued Chokotho.

After arguments from MEC and Mutharika lawyers, the Supreme Court adjourned  and then Chilima and Chakwera’s lawyers will make counter-arguments.

Both MCP and UTM claim the May 21 presidential election was rigged in favour of Mutharika who was declared winner with 38 percent of the votes trailed by Chakwera with 35 percent and Chilima with 20 percent.

The petitioners cite irregularities, especially in the results management process, as some of the factors justifying nullification of the presidential election.

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