Malawi Electoral Commission (MEC) chairperson Jane Ansah used a lawyer who has no valid practising licence in swearing her affidavit for the action, Vice-President Saulos Chilima has told the High Court.
Based on this technicality, Chilima—the first petitioner in the presidential election nullification case—has asked the court to dismiss MEC’s application for suspension of the Constitutional Court judgement nullifying last year’s presidential election.
In his application to the court expected to hear the parties in Lilongwe today, Khumbo Soko, one of the lawyers representing Chilima—says since Ansah’s lawyer does not have a licence, it means that technically, the sworn statements do not exist and the application is “fatally incompetent and must be dismissed”.
Court documents only identify the lawyer as “Mr. Musopa of NBS Bank Ltd”.
Soko contends that the technicality means there is no sworn statement in respect of the second respondent, MEC.
He said: “A document only becomes a sworn statement if the deponent takes an oath duly administered by a commissioner for oaths.
“Oaths and commissioners for oaths are governed by a statute; the Oaths, Affirmations and Declarations Act [Cap. 4:07] [the ‘OADA’]. Under sections 3 and 4 of the OADA, a legal practitioner is only a commissioner for oaths if he has a licence issued under the Legal Education and Legal Practitioners Act [the Lelpa].
“The sworn statement of Justice Dr. Jane Mayemu Ansah, SC purports to have been signed before Mr. Musopa of NBS Bank Ltd. The said Mr. Musopa was not a licensed legal practitioner as at 7th February 2020. He had no capacity, therefore, to administer an oath.”
Attorney General (AG) Kalekeni Kaphale, who continues to represent MEC in the matter despite criticism by the High Court of Malawi sitting as the Constitutional Court over his role in the case, did not directly address the question of whether the lawyer Ansah used had a valid licence or not.
But Kaphale said MEC may re-file the application after Ansah remakes her affidavit through another lawyer.
He said he had seen the application, but could not confirm that the lawyer has no valid licence.
Said Kaphale: “It is possible to have the affidavit retaken under proper licence holder. The financial year for MLS [Malawi Law Society] ends in January and in the immediate days, it is difficult to know who has a licence or not. We will definitely file an application in response.”
Through his lawyers, Chilima also argues that the interpretation of Constitutional Court ruling is that Kaphale, as chief legal adviser to government, is barred from participating in the court process as the judges ruled that his involvement compromises the impartiality of the AG’s office.
The application also questions whether MEC has made the decision to have the judgement set aside or Ansah, a judge of the Malawi Supreme Court of Appeal, made the decision on her own.
Chilima’s lawyers argue that there are no minutes of the meeting of MEC commissioners that made the decision to appeal.
But Kaphale said MEC would file an application to defend the application in response.
He said: “How do I apply to appeal if I cannot be allowed to file application? If you check the appeal, the application was signed by MEC. I am only applying for the stay. I will not say much because the matter is in court and we shouldn’t be seen as litigating in newspapers.”
In his application, Soko cites cases where some lawyers were disqualified for not processing valid legal licence as a precedent for the case.
The development comes amid a turbulent time for MEC commissioners battling to salvage the commission’s reputation after the five-judge panel’s ruling and the ongoing inquiry with Parliament’s Public Appointments Committee, which is assessing their competence.
The court recommended that Parliament—through the statutory committee—assesses the commissioners after finding them wanting in the management of the May 21 2019 presidential election.
On Saturday, MEC lawyers failed to meet the deadline for submission of the stay order application. The court found that the electoral body incompetently managed the May 21 2019 Tripartite Elections, especially in the management of the presidential election results.