President Peter Mutharika wants the Constitutional Court to dismiss petitions of UTM Party president Saulos Chilima and Lazarus Chakwera of Malawi Congress Party (MCP) challenging results of the presidential race in the May 21 Tripartite Elections.
Through private legal firm Mbeta & Company, the President wants the court to throw out the applications for purportedly being irregular, defective and lacking sworn affidavits by the petitioners.
The preliminary application by Mutharika, who was added to the case as the first respondent by virtue of being the declared winner of the disputed election, comes ahead of a scheduling conference set for 2pm in Lilongwe this Friday.
In a sworn affidavit we have seen, private practice lawyer Chancy Gondwe, a member of Mutharika’s legal team, among others, submits that the petition by Chilima, who is the first petitioner in the case, is irregular and incompetent.
He says Chilima, who was Mutharika’s second-in-command between May 2014 and May 2019, failed to file an election petition within the prescribed seven days period after announcement of results; hence, should not be considered.
In case of Chakwera, who is the second petitioner, Mutharika is challenging his petition filed on June 3 on the basis of being “irregular, incompetent, embarrassing and incurably defective” as well.
Reads the preliminary application: “Take further notice that the sworn statement of Chancy Thomu Gondwe, of counsel, shall be read in support of the application.”
In his affidavit, Gondwe said at the expiry of the seven-day period there was no sworn statement of Chilima to verify the said petition and no sworn statement of the petition containing evidence in proving allegations made.
He also said Chakwera’s petition was not served on Mutharika and that it was signed by lawyer Titus Mvalo without any certificate on an affidavit by an officer certifying by whom, when and where it was sworn.
When contacted yesterday, Mvalo said he would comment after today’s scheduling conference at the High Court in Lilongwe.
He said: “We are dealing with this issue in court so I think it is not right to comment. We can only comment after the issue has been presented in court.”
In a brief e-mail response, Chikosa Silungwe, lawyer representing Chilima, also reserved his comment on the preliminary application by Mutharika. He indicated that they were yet to be served with the court documents as of yesterday afternoon.
Chilima and Chakwera filed separate petitions disputing the May 27 Malawi Electoral Commission declaration of Mutharika as winner of the presidential race with 1 940 709 votes representing 38.57 percent followed by Chakwera with 1 781 740 votes representing 35.41 percent with Chilima finishing third and ahead of four other aspirants with 1 018 369 votes representing 20.24 percent.
The petitioners cite irregularities, especially in the results management process, as some of the factors justifying nullification of the presidential election.
But last week the High Court consolidated the petitions into one case and referred the matter to Chief Justice Andrew Nyirenda who subsequently certified it as a constitutional matter and assigned a five-judge panel to hear the case as a Constitutional Court.
The five-judge panel comprises Healey Potani, Mike Tembo, Dingiswayo Madise, Ivy Kamanga and Redson Kapindu.
In a notice of the consolidated elections case numbers 16 and 26 of 2019 dated June 11 signed by Agnes Patemba, registrar of the High Court of Malawi and Malawi Supreme Court of Appeal, summoned the parties to the case to the scheduling conference this afternoon.
Lawyer Justin Dzonzi described the scheduling conference as a meeting where parties to a case agree on a timeframe of subsequent events and requirements for trial.
He said should the court find merit in arguments presented by the petitioners, it may nullify the results.
Said Dzonzi: “Now, after nullification, there are two possibilities; either the evidence will prove that between the two one was actually a winner, but if it is not possible to make that determination then the court may order a re-run in which case we may have a fresh presidential election.”
But in a WhatsApp response, Attorney General (AG) Kalekeni Kaphale, the chief legal adviser to government, said he was out of the country and would join the case when he returns.
He said as of Tuesday his office had not been served with documents by the petitioners.
Kaphale also clarified that Mutharika is being represented by private practice lawyers instead of the AG’s chambers because he is in the case in his private capacity as an election candidate.
While several election observer missions, both local and international, declared the electoral process free and fair, others, including Public Affairs Committee (PAC) and European Union Election Observer Mission, expressed some reservations.
The European Union Election Observer Mission also faulted the results management system.