Africa-Press – Malawi. The opposition Democratic Progressive Party (DPP) is optimistic the nullification of the 23 June 2020 fresh presidential results will commence soon following the Office of the Chief Justice payment request for the issuance of the Certificate.
Former Attorney General Charles Mhango of Mhango and Company representing the DPP, told Nyasa Times in an interview on Thursday, 5 August 2021 that they have not received the certification yet from the Chief Justice but they expect it soon.
“The Office of the Chief Justice confirmed to us on Thursday 29th July 2021 that the Honourable Chief Justice was satisfied with our referral from Honourable Justice Madise and therefore requested us to file the necessary Certificate.
“In compliance with the request from the Honourable Chief Justice, we filed the necessary Certificate on Friday, 30th July 2021,” said Mhango, adding that as prosecuting lawyers, they have satisfied their part and what remains is for the Chief Justice to sign the Certificate and appoint the judges.
The DPP asked the courts to nullify the 23 June 2020 fresh presidential election results and the results of subsequent by-elections on the basis that four Malawi Electoral Commission commissioners were illegally appointed by former President Peter Mutharika.
In a High Court judgement of 2 June 2020, Justice Kenyatta Nyirenda invalidated and terminated the appointments made in 2019 of four DPP commissioners – Arthur Nanthuru, Steve Duwa, Jean Mathanga and Linda Kunje – saying the law required [former] President Mutharika to appoint six commissioners, three each from the DPP and Malawi Congress Party (MCP).
Instead, Mutharika only appointed two commissioners from the MCP while DPP provided four. The move was ruled illegal and unconstitutional in relation to Section 75 of the Republican Constitution.
The MCP through its Secretary General Eisenhower Mkaka sued the ‘presidency’ to correct the anomaly. Judge Kenyatta agreed and signed the dismissal of the four commissioners.
Following the Justice Kenyatta’s ruling, the DPP moved the courts to nullify the results of the 2020 fresh presidential poll and subsequent by-elections, arguing they were managed by ‘illegal commissioners’.
Should the matter go in favour of the DPP, President Lazarus Chakwera, who was elected during the fresh presidential election and all Members of Parliament (MPs), and Ward Councillors elected during by-elections under the illegal commissioners would lose their positions.
The DPP seeks “consequential orders and directions that the status of the presidency of the Republic of Malawi reverts to the position it was prior to the appointment of the inquorate and unconstitutional sevenths cohort of the Malawi Electoral Commission”.
A few days after the DPP filed the application with the High Court, Judge Dingiswayo Madise referred the application to the Chief Justice for certification as a constitutional matter and appointment of constitutional Judges to hear the matter. It was Judge Madise’s determination that the DPP application raised serious constitutional issues, hence referring it to the Chief Justice for certification.
Meanwhile, some quarters have expressed concern over “delay by Chief Justice in certifying the matter” arguing that according to Order 19, Rule 3 and 4 of the High Court Procedure Rules 2017, it is provided that “the certification by the Chief Justice SHALL be made within 7 days from the date a proceeding is filed before or a referral to him for such certification”.
But a legal expert has said while the ball is now squarely in the Chief Justice’s and that he is compelled to empanel a constitutional court, he may have some technical issues to deal with, including the identification of Judges to constitute the constitutional court.
“One thing is for sure; this is not a small case; Judges will have to be 100 percent willing to sit on this court. Otherwise, one may not rule out some judges being unwilling to take up this challenge for various reasons.
“So, in that case, my opinion is that the Chief Justice may not append his signature to the certificate until he has assembled the required number of judges to hear the matter,” said the legal expert on condition of anonymity.
However, he said there are legal tools available to use if some think the Chief Justice is deliberately delaying the process and that it is in conflict with the law. He said Chief Justice is a constitutional position and if some people think he is delaying, they can force him to do what is required of him according to law.
