Court merges MCP, UTM case

Discontented Malawi Congress Party (MCP) president Lazarus Chakwera and his UTM Party counterpart Saulos Chilima will now fight Malawi Electoral Commission (MEC) together after the High Court yesterday ordered a consolidation of their May 21 Tripartite Elections petition cases.

Registrar of High Court and Supreme Court of Appeal Agnes Patemba said in an interview yesterday the consolidation order meant the cases would now be treated as one application and also be heard by one court.

In his order, Judge Charles Mkandawire said having perused through the two petitions and their supporting documents, he had observed they were similar in nature and relate to common question of law.

The two opposition leaders separately filed their applications with High Court Lilongwe District Registry last week challenging results of the May 21 presidential election in which governing Democratic Progressive Party (DPP) President Peter Mutharika was declared winner with Chakwera and Chilima coming second and third, respectively.

Mkandawire further observed that the two cases arose out of the same transaction, as such there was no good and sufficient reason to continue hearing them separately.

“I, therefore, order, pursuant to Order 9 of the Courts [High Court] [Civil Procedure] Rules 2017, that these two matters be consolidated,” reads the order issued yesterday.

Mkandawire added that he was satisfied the two cases were constitutional in nature and needed Chief Justice Andrew Nyirenda’s certification, in accordance with Section 9(3) of the Courts Act, to have them be heard in a constitutional court.

On the certification issue, Patemba said the Chief Justice would scrutinise the cases files and determine whether there are indeed constitutional matters requiring to be attended to by a Constitutional Court.

“Upon his satisfaction with the issues he will refer it to the Constitutional Court for a panel of three judges to hear the matters but if he is not then he will send them back to the judge who made the order to proceed with hearing,” said Patemba.

MCP and Chakwera’s lawyer Senior Counsel (SC) Titus Mvalo in an interview welcomed the order, saying he had no problems with it as both parties were seeking the same reliefs.

He said: “Both cases are premised on the same facts, same transactions and the applicable law is the same… They involve the same question of law and they would ideally be dealt with together. So, in my case, it’s a good order and I welcome it.”

But on his part, UTM Party legal representative Chikosa Silungwe said the party would study the contents of the order and come up with a position later.

“I have just been informed of the ruling. Unfortunately, I am currently in Blantyre and my other colleagues are in Lilongwe. We are a team so we will meet and discuss the way forward once am back in Lilongwe,” he said.

But in separate interviews on Monday, both MCP spokesperson the Reverend Maurice Munthali and his UTM Party counterpart Chidanti Malunga, principally welcomed the possibility of a joint legal case.

In the MCP petition, the party cited several irregularities and incidents which the party believed helped Mutharika win a “fraudulent” election.

Among the irregularities cited was the stuffing of ballot papers with pre-marked ballots, tampering with election results sheets through correction fluid widely known as Tippex and officials being caught with result sheets at home.

The affidavit by MCP identifies the country’s oldest political establishment as the first claimant in the case, Chakwera as second claimant and MEC as the defendant.

The affidavit, among others, states that there were “several rigging acts by members, supporters, sympathisers, officials and DPP agents in favour of the governing party which distorted the results to favour DPP against the votes and will of the people of Malawi.”

In its affidavit, UTM Party wants the presidential results nullified, arguing the polls were marred by a “plethora of irregularities” including bribing presiding officers and monitors, stuffing of

pre-marked ballots, altering result sheets and intimidation.

In the affidavit, UTM further commits to bear costs of nullification of the elections if the court decides so, but Silungwe explained in an interview the undertaking was standard practice in such petitions.

He said: “The High Court decides at the end of the case whether to order any party to pay the costs after an assessment so we are just making a standard statement.”