Sunrise or sunset?

Our reporter JOHN CHIRWA engages Professor Danwood Chirwa, a law professor at the University of Cape Town in South Africa on burning issues with the Constitutional Court judgement which has nullified President Peter Mutharika’s re-election in the May 21 2019 Treipartite Elections.

Q

: Are Mutharika and Malawi Electoral Commission (MEC)justified to challenge the Constitutional Court ruling in the Malawi Supreme Court of Appeal?

A

: To begin with, the President is in a precarious position. Granted, it was a mistake by the petitioners to have cited him as the first respondent or a respondent at all. The petitions did not make allegations against him. The election was conducted by MEC and the findings of wrongdoing are against MEC. Mutharika should have been left to join the case by himself as a party interested in the outcome of the case, not as a respondent to the petition. Despite this mistake by the petitioners, Mutharika cannot say that he is an aggrieved party with a right to appeal because the case makes findings of wrongdoing against MEC. This is why the court did not impose a cost order against him.

Q

: What do you mean by that?

A

: If A stole a car from B and gave it to C as a gift, and a court convicts A of theft and orders the car to be taken away from C, C is not an aggrieved party at law: he is just a beneficiary of illegality and cannot be heard to say he has lost property. Therefore, he cannot claim an entitlement to appeal against the conviction of A. In this case, the real party to appeal is the MEC. But it is doubtful that MEC too has an automatic right of appeal. As a constitutional body charged with serving the public interest, it must be shown that the appeal is in the public interest.

Q

: What is the cost of taking the matter to the Supreme Court?

A

: MEC has already been ordered to pay costs to the petitioners. The bill will be colossal and that is all taxpayers’ money. If MEC loses the appeal, the public will have lost billions on a shambolic election and on litigation bills.    Remember, MEC is also enriching private attorneys whom it is paying huge sums of taxpayers’ money. There’s every reason to believe that an appeal by the MEC can never be deemed to be in the public interest. As the judgement shows, MEC has been found guilty not only of incompetence and violations of its constitutional and legal obligations. The court also found the commissioners to have abdicated their responsibilities. There is no reasonable prospect that these findings will be reversed on appeal. As things stand, this is an illegitimate body that stands to be dissolved. That the commissioners have not resigned already speaks to the moral standing of the commissioners.

Q

: What do you make of MEC’s application for a stay order suspending the Constitutional Court judgement, including the order to hold fresh elections within five months?

A

: The court would have to consider the stay very carefully. It is unlikely that it would order the full stay. The court cannot allow an illegitimate government to continue or anyone to profit from an illegality. The President is

still holding office on an interim basis, but Cabinet members have no right to continue to serve, given what the judgement says. These serve at the pleasure of the President and so they lose nothing now that they have been rendered jobless. So, there is no basis for staying the judgement on these aspects.

But the preparation for fresh a election might be delayed a bit to the extent that this requires enormous resources and the government may not spend extensively until the Malawi Supreme Court of Appeal rules.

Q

: What is your take on the opinion gaining sway that the appeal might just be a ploy to buy time?

A

: The appeal will be solely based on the record of the Constitutional Court. No new evidence. Lawyers for the appellants would file grounds of appeal and substantiate them with submissions. The respondents would reply. Then oral arguments followed by the decision. Things run much faster in an appeal.

Q

: What are the disadvantages of having an illegitimately elected President in power in preparation for a fresh election as ordered by the Constitutional Court?

A

: An illegitimate president can cause irreparable harm, waste resources, promote discord, commit the State to unreasonable obligations with third parties. In short, [the person holding on to power can] do everything to frustrate the public interest.

Q

:  The ConCourt has tasked the Public Appointments Committee of Parliament to assess the competence of MEC’s current commissioners. Is there room that these could face criminal prosecution for subverting the will of the people and abdicating their constitutional mandate?

A

: There’s no evidence of criminality on the part of the commissioners before the court. If there was, the court would have recommended an investigation. The commissioners are duty-bound to resign. The judgement is scathing of their conduct. They need to fall on their sword.

Q

: The court recommendation for Parliament to put in place relevant laws for the president to be elected with over half of the valid votes has sparked debate over the principle of separation of powers as the Judiciary seems to twist the Legislative arm. Does the Judiciary make law?

A

: Court decisions form precedent and precedent is law. It is a constitutional duty of the courts to interpret the law and to resolve legal disputes. These functions inherently lead them to make law, although not as extensively as Parliament does. They ‘make law’, loosely speaking, as their interpretation of law binds lower courts and future conduct.

Q

: What is your view on Mutharika’s reaction that the judgement “inaugurates the death of Malawi’s democracy”?

A

: The President’s comments about the judgement are the words of a person who has benefitted from illegality and now is embarrassed that he’s been exposed. Far from his claim that the judgement inaugurates the death of democracy, the verdict in fact heralds a new dawn—of democratic renewal and of respect for the will of the people. The system under which he rode to power is deeply flawed, built on a tribal and corrupt substructure. He could be scared that that substructure has been cracked and a new one that is forward-looking, inclusive and progressive has been set in its place.