Malawians will have to wait a little longer to know the president-elect after the High Court in Lilongwe deferred a ruling on whether the injunction on the announcement of results of the presidential election should be lifted.
Malawi Electoral Commission (MEC) lawyers led by Attorney General Kalekeni Kaphale, have argued that Malawi Congress Party (MCP) wrongly obtained a stay order before exhausting remedies from MEC as mandated by law.
MEC has also challenged the court order granted to MCP on Saturday stopping the commission from announcing the results.
The court ordered MEC not to announce presidential election results pending a judicial review.
MCP wants votes from Nsanje, Chikwawa, Mangochi, Blantyre, Zomba, Karonga, Rumphi, Nkhata Bay, Chitipa, and Mulanje verified through recounting of the ballot papers.
There was high expectation in the crowd gathered at the court premises, comprising dominantly MCP supporters, that the injunction would remain in place.
However, MCP supporters still cheered when their lawyers informed them a decision had not been made.
In an interview after the hearing, which Justice Charles Mkandawire presided over in chambers, MEC lawyer David Matumika Banda told the media that a ruling would be made “within a reasonable time”.
“The court has heard arguments from both sides but it has not made a decision. The court has said it will make a decision within a reasonable time but it has not said when that will be,” he said.
This means Malawians will have to wait to know if the court has set aside the stay order on the determination of results of the presidential election.
“Meanwhile, the hands of the commission are still tied because the stay is still in place up until the court makes a decision,” Banda said.
In their arguments for lifting the injunction, MEC argued that MCP erred in rushing to court when the commission was not given the opportunity to resolve the grievances.
The Civil (High Court) procedure rules and the Presidential and Parliamentary Elections Act provides that MEC should be allowed to resolve electoral disputes and only after not being satisfied with that determination the matter can be taken to court.
“We said there is nothing that must be reviewed by the court. At the moment, MCP lodged a complaint which has not yet been determined by the commission. Therefore, there is nothing that can be brought to court to be reviewed,” the MEC lawyer said.
It was MCP’s argument that the serious discrepancies they have observed in the presidential election can only be resolved through a recount.
If MEC resolves the 147 complaints it has received and proceeds to determine the winner of the presidential election, MCP lawyers feel there will not be time to challenge this through courts.
MCP lawyers told the court that once a winner is declared, he will be sworn in when he was not duly elected because the election was marred with irregularities.
“These include the tippexed forms and in some places the tally sheets that we have higher votes for Chakwera but the figures that went to MEC showed lower votes for him,” one of the lawyers representing MCP, Pempho Likongwe, said in an interview.
When MEC announced results at 75.8 percent of the results tallied, Democratic Progressive Party (DPP) candidate Peter Mutharika was leading with 40.4 percent against MCP’s Chakwera at 35.4 percent followed by UTM Party’s Saulos Chilima at 18.3 percent.
The court case attracted a small crowd, mainly MCP supporters and members of Parliament-elect while the DPP was also represented through its director of elections Ben Phiri, director of legal services Charles Mhango and his deputy Oscar Taulo.
DPP has since joined the case as an interested party while Malawi Law Society (MLS) has joined as amicus curiae (friend of the court).
MLS executive secretary Martha Kaukonde said in interview after the hearing that they were given the opportunity to address the court on salient points of law that should be looked into in the course of the case.
“We have guided the court that the Presidential and Parliamentary Elections Act has made provisions when issues arise regarding conduct of the elections,” she said.
As the lawyers were arguing their cases before the judge, a vehicle carrying members of gule wamkulu brandishing pangas arrived at the court attracting the attention of onlookers who rushed to watch the spectacle. It was after interventions from some MCP leaders present that the gule wamkulu quieted down and remained in the vehicle.