Court rebuffs ex-mcp chairpersons again

The High Court in Lilongwe on Friday dismissed an application calling Malawi Congress Party (MCP) Secretary General Gustav Kaliwo, his deputy and the director of elections to testify whether the current composition of the party’s national executive committee (NEC) is unconstitutional.

At least 27 former district chairpersons, led by then Dedza Valley chairperson Lackson Khamalatha, are challenging the inclusion of new NEC members by MCP president Lazarus Chakwera in November last year which has become a cause of problems in the party.

This was the fourth application the group has lost since the stand-off started last year.

In the application currently before the High Court in Lilongwe, some issues arose during cross-examination on Friday that required Kaliwo’s testimony, his deputy and that of director of elections Maxwell Thyolera, but MCP lawyer Wapona Kita challenged the application to subpoena the three.

Lawyer for Khamalatha and others, Wesley Namasala, wanted the three to appear before the court to clarify whether Kaliwo received a petition calling for an emergency convention.

He also wanted the three MCP officials to comment on whether the party ever held an emergency convention, clarify the procedure that was followed to fill up vacant positions in the party and explain whether the composition of the NEC was unconstitutional as they alleged.

In his ruling, Justice Charles Mkandawire said although the court had powers to order any person to appear before it under rules of the Supreme Court, the summoning of Kaliwo and his deputy would be impossible.

He agreed with the MCP lawyer that the burden of proof in this particular case lies with the applicants and MCP could not be compelled to support their case.

Mkandawire added that the former district chairpersons, through their lawyer, were given an opportunity to re-examine the witnesses who, he said, gave detailed testimony about how MCP operates.

“Having looked at the totality of the facts in this case, I find that the summoning of the Secretary General and his deputy to be unattainable. This court does not need the evidence of first respondent [Secretary General] to appreciate the composition of the committee…to decide whether the current NEC is unconstitutional. These are things which can be verified from the MCP constitution,” he said.

Mkandawire noted: “To compel the first respondent and his deputy to come and give evidence in these circumstances would be equal to assisting the applicants to prove their case. This would be unfair.”

Last month, the High Court in Blantyre delivered a default judgment declaring the MCP NEC unconstitutional and illegal after the party failed to appear to defend an application brought by ousted MCP member, Chatinkha Chidzanja and Dennis Nanthumba, but the ruling was later set aside. n