Mutharika remarks over ConCourt ruling sparks mixed feelings

Malawian law experts and  governance commentators have reacted with mixed feeling President Peter Mutharika’s remarks that the Constitution Court’s (ConCourt) ruling  which overturned Malawi’s May 21 2019  election results “inaugurates the death of Malawi’s democracy.”

Malawi Law Society (MLS)  president Burton Chidongondo Mhango argues that Mutharika was within his rights tio comment on the landmark judgement and governance exeprt Makhumbo Munthali also argues that the President is exercising his right to be aggrieved with the ruling and appealing.

Other commentators argue that  fresh elections will be costly to organize, and there is no guarantee of a more competent, professional, and independent electoral commission next time around.

The court’s ruling also introduced a degree of confusion as to whether a majority or a plurality of votes will be required to secure victory in future polls.

In his special addressed aired on Malawi Broadcasting Corporation (MBC) on Wednesday, Mutharika said he  considered the judgement as “serious subversion of justice, an attack on our democratic systems and an attempt to undermine the will of the people.”

Mutharika said he has instructed his  legal team to appeal against the judgment and challenge it at the Malawi Supreme Court of Appeal.

Political analyst Vincent Kondowe says it is not easy to overturn unanimous decisions by Constitutional Court judges.

“And when you look at the evidence, and when you look at the magnitude of irregularities that have been expounded by the constitutional court, I don’t think an individual would have much carriage to appeal such type of a court decision.

 

“So, for me, I would encourage President Peter Mutharika not to appeal,” Kondowe said.

 

On his part, Chancellor College law lecturer Garton Kamchedzera questioned the legal ethics of Mutharika’s battalion of lawyers, saying they were supposed to guide the President.

 

Mutharika is also a professor of law.

 

But Kamchedzera said the lawyers should have a critical look at the judgement, themselves and Malawi Electoral Commission before acting in “haste.”

He accused Mutharika team of lawyers for “legal arrogance”.

The legal team for President Mutharika  comprises Frank Mbeta, Samuel Tembenu, Charles Mhango, David Kanyenda and Chancy Gondwe.

Governance commentator Makhumbo Munthali  told Nyasa Times that Mutharika who was party to the case a second respondent has a Constitutional right to appeal if not satisfied with the ruling.

“However, it will be interesting to see the areas they will be appealing against especially considering the fact that the High Court found MEC (not Mutharika) in the wrong. At the end of the day, the Supreme Court ruling would even strength the validity of High Court verdict or invalidates mindful of the fact that Supreme Court is the Court of last resort- domestically,” he said.

He nonetheless said: “ There is nothing wrong (legally) with Mutharika appealing. Let him exercise such a right. In fact, it’s part of judicial accountability.”

Malawi Congress Party (MCP) spokesperson Maurice Munthali said the appeal doesn’t worry the opposition.

“The appeal case won’t change anything as far as we are concerned,” Munthali said.

“Because we have gone through the judgment and we feel that the judges have done their work very professionally, very objectively, without any bias and any favor at all in terms of justice.”

Last May, the electoral body led by Supreme Court judge Jane Ansay  declared that incumbent President Mutharika had won another term, bringing in 38.6% of the vote, followed by 35% for  Malawi Congress Party (MCP) presidential hopeful Lazarus Chakwera and 20% for Mutharika’s estranged former vice president, Saulos Chilima of UTM Party.

But on Monday, a five-judge panel unanimously ruled that the integrity of the May 2019 election result was “seriously compromised,” placed blame squarely on the shoulders of the Malawi Election Commission, and determined that the announced result “cannot be trusted as a true reflection of the will of the voters.”

The court also reverted the presidency to pre-May 20 2019 elections which meant Chilima is reinstated as the country’s second command.

The highly-anticipated judicial decision came on the heels of months of popular protests, many focused on rejecting ‘Tipp-exed’  electoral results, but others aimed at demanding more respect for human rights from the police force, an end to corruption and better service delivery from government.

Mutharika,  who will remain president until the new election,   has up to six weeks to appeal.

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