High Court Judge Kenyatta Nyirenda comes under the spotlight today as the nation awaits his decision which could determine the direction Malawi Electoral Commission (MEC) should take regarding the fate of the May 20 Tripartite Elections.
Hearing of the elections dispute case resumed in the High Court in Blantyre last evening, hours after it was adjourned to find a new judge after Healey Potani recused himself from the case.
Nyirenda took over from Potani who recused himself from the case he was handling after Malawi Congress party (MCP) presidential candidate Lazarus Chakwera asked him to do so.
Through one of his lawyers, Gustav Kaliwo, Chakwera said Potani’s younger brother, Harris, works at MEC as deputy chief elections officer responsible for operations.
Kaliwo said there was a precedent as Potani recused himself in an earlier matter this year between Jessie Kabwila and MEC, and felt he needed to do the same in the current matter to avoid compromising the independence of the Judiciary.
Lawyers representing MEC and opposition Democratic Progressive Party (DPP) and its presidential candidate Peter Mutharika argued against Potani’s recusal, but after hearing arguments, Potani reluctantly recused himself from the case.
Chakwera’s preliminary application put MEC in a dilemma as it was set to announce the election results today at the expiry of the 48-hour statutory window the electoral body is required to announce the results after completion of tallying of results.
Today also marked the end of the statutory eight-day period for MEC to announce the results after the end of polling, according to law. This followed its earlier announcement that it would seek an extension of up to 30 days to carry out an audit of the ballots following discovery of serious irregularities.
MEC chairperson Maxon Mbendera announced on Wednesday that the commission was going to announce the May 20 Tripartite Elections results today, but dependent on the outcome of the court case.
Before Potani recused himself, there were two issues the court was tasked to determine: whether MEC has powers to do recount of poll votes or physical verification and whether the courts have powers to extend the eight-day period under which MEC is compelled to announce the results.
Before he recused himself, Potani dismissed a proposal by Kaliwo to vacate an injunction one of the presidential candidates, Friday Jumbe, obtained earlier to stop MEC from vote recount.
Lawyers Patrick Mpaka, Felix Tandwe and Jai Banda, representing opposition United Democratic Front (UDF) presidential candidate Atupele Muluzi who joined the matter as an interested party, proposed that the matter be certified by the Chief Justice to be heard by a three-judge panel as a constitutional matter.
But Potani dismissed that application on the basis that there was nothing in the matter to do with application or interpretation of the Constitution.
There were different cases, but the cases have been consolidated into one case.
MCP is demanding recount of the votes following alleged irregularities and fraud during voting, but DPP, whose candidate was leading according to unofficial results, is rejecting the recount.
Hearing of the matter was adjourned at 6.30pm last evening after MCP lawyers asked the court to vacate an injunction obtained by Friday Jumbe and others that MEC should announce results and not go for a recount. Lawyers representing UDF were not ready with their arguments and the case resumes at 8am this Friday.