Court dismisses MEC, APM appeal

The Malawi Supreme Court of Appeal yesterday dismissed with costs an appeal President Peter Mutharika and Malawi Electoral Commission (MEC) had filed to throw out the ongoing presidential election petition case at the Constitutional Court.

The ruling paves the way for the Constitutional Court to today continue hearing the presidential election case from UTM Party presidential candidate Saulos Chilima and his Malawi Congress Party (MCP) counterpart, Lazarus Chakwera.

MEC and Mutharika wanted the election petition case thrown out for being filed “irregularly” and “illegally”.

A panel of seven Malawi Supreme Court of Appeal judges led by Chief Justice Andrew Nyirenda heard the appeal in Lilongwe for a few hours before they made the ruling in the afternoon.

Chakwera (L) and Chilima shake hands after the ruling

Reading the ruling, Nyirenda punched holes in the appeal, citing irregularities in the way it was filed at the Supreme Court.

He stated: “Our answer is yes; these matters are appealable under provisions 21 and 23. Proceeding from there, we notice a couple of issues; (a) there are no notice appeal files by the first appellant (b) there is a notice of appeal by the second appellant but the matters are matters raised by the first appellant and not the second appellant in the court below.

“Having made these observations, having heard the skeleton arguments and having heard counsel this morning orally and having considered the matter in entirety, we dismiss the matter with costs.”

Nyirenda, flanked by Justices Rezine Mzikamanda, Anthony Kamanga, Edward Twea, Dunstain Mwaungulu, Lovemore Chikopa and Edgar Kapanda, arrived just after 9am at the court to hear the matter.

The Chief Justice stressed to the lawyers that each side had 10 minutes for preliminary arguments and 30 minutes for substantive arguments.

During submissions, MEC lawyers argued that the petition by Chilima and Chakwera were irregular and invalid as they were filed outside the stipulated seven-day period.

MEC’s lawyer Tamando Chokotho focused on alleged absence of payment receipts as evidence that Chakwera’s case was filed outside the legal period and suggested that the party possibly committed fraud while registering the case.

Lawyers who argued to have the case dismissed included Chancy Gondwe and David Kanyenda, who represented Mutharika.

Titus Mvalo, Chakwera’s lawyer who was accused of improperly filing the petition documents, countered the argument, citing the specific receipts which were obtained as proof that filing fees were paid while lawyer Modecai Msisha, also representing Chakwera, accused MEC of making fraud allegations but failing to provide evidence and in turn asking Chakwera’s lawyers to provide the said evidence.

Chilima’s Chikosa Silungwe argued against the appeal, saying Section 100 of the Parliamentary and Presidential Elections is clear on steps for filing electoral petitions which the Petitioners followed.

And after close to two hours and 30 minutes of submissions, the court adjourned at 11.30am for one hour for a ruling.

When the court resumed, Nyirenda said the Supreme Court was dismissing the appeal both based on procedure for filing the appeal and arguments raised in the appeal.

Speaking in an interview after the ruling, Chakwera’s lead lawyer Modecai Msisha said the ruling was a relief as the legal teams will now go through the Constitutional Court hearing without fear that it could be rendered a futile process by one Supreme Court ruling.

 “With litigation, you can never predict what’s going to happen, but based on the issues the way I understood them, the court is quite right that the appeal should not have been filed,” he said.

Reacting to the ruling, former Attorney General and Mutharika’s lawyer Charles Mhango said he was surprised by the decision to dismiss the appeal on the grounds of improper filing.

“You notice that the court says there was no notice of appeal by the first appellant. That’s a case management issue which I don’t want to comment on, but we filed our papers and we were of the view that all the papers were in order.

“In terms of the merits of the decision, one is that we are satisfied that the court agreed with us that the matters are appealable. However, the court has observed that most of the issues which we raised could have been resolved administratively.

“Why the court is saying that, we have not seen the reasoning. You heard in the arguments that issues of receipts for payments, it appears the court is of the view that those are matters which could have been resolved administratively,” he said.

One of Chilima’s lawyers, Mtchuka Mwale, welcomed the verdict, saying it’s a relief for the Chilima legal team.

“We are happy the matter will proceed. It doesn’t affect the Constitutional Court hearing, but it’s a good development,” he said.

The country has been embroiled in a political crisis since the opposition disputed the results of the May 21 presidential election which granted Mutharika a second term in office after a narrow victory. Both Chilima and Chakwera are challenging the results in the Constitutional Court.

Earlier on June 22, Judge Healey Potani, chair of the five-judge panel of Dingiswayo Madise, Redson Kapindu, Mike Tembo and Ivy Kamanga, sitting as the Constitutional Court in Lilongwe, ruled against Mutharika and MEC to quash the referral case by Chakwera and Chilima, who are disputing the May 21 presidential poll results.

The MCP and UTM Party presidential candidates claim the presidential elections were 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 electoral case started in earnest last Thursday before Potani announced on Wednesday this week as he adjourned the proceedings that the case would not take place yesterday to give room to the Supreme Court as some lawyers in the elections petition case were also in the case before the Supreme Court.

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