We need the Constitutional Court

December 5 2019

So, as I write this entry, the expectation is that the hearing of the presidential election challenge case would be concluded on December 6. Judge Healey Potani, leading the five judges hearing the case, said in a previous session that after hearing is concluded, they would have 45 days to present their ruling.

Since July 29, five judges have been hearing the gruelling case, with Saulos Chilima of UTMP Party and Malawi Congress Party (MCP) president Lazarus Chakwera as first and second petitioners; President Peter Mutharika and the Malawi Electoral Commission (MEC) as first and second respondents; and the Malawi Law Society (MLS) also joined the case as amicus curiae—friends of the court.

I can’t say much about the merits and demerits of the case for that is the duty of my lady and my lords Ivy Kamanga, Potani, Redson Kapindu, Dingiswayo Madise and Mike Tembo. Their wigs, robes and that mighty gavel are too honourable far beyond my power to add or detract!

Then, it has also been a valiant fight for counsel for both the petitioners and respondents. One could not stop admiring how the learned friends can put witnesses in a corner and beat their evidence to pulp. Being a witness in such a high-profile case is no child’s play.

It was a first case in Malawi, if I am not mistaken, to be aired on several radios. This enabled those who could not make it to the court to follow proceedings through their phones, radio sets and even in cars.

I can add that we can go a step ahead next time by allowing those who apply to beam the proceedings to do so. Who would not want to see live on TV how hot things were going as the case was progressing. This, I believe, should be in the spirit of the Access to Information.

As the case draws to a conclusion, and both sides have been urged to swallow the bitter pill if the venerable judges do not rule in their favour, I hope the prayers for peace after the case is conclusion will help bring sanity to the two sides.

One thing that is clear is that the constitutional court has really proven its worth in hearing the case. Isn’t it time we had a permanent constitutional court to hear cases that touch on the supreme law of the land.

Off the head, I can recall some two previous constitutional court rulings. The first was where a murder convict Francis Kafantayeni and five other was challenging the constitutionality of the death penalty. The case was heard by three judges: Elton Singini, Frank Kapanda and Maclean Kamwambe in 2007.

The other constitutional case that was heard quite recently is where a street vendor Mayeso Gwanda was challenging the constitutionality of the Rogue and Vagabond Law. The case was heard by judges Dr Isaac Mtambo, Silvester Kalembera and Zione Ntaba.

It must be noted that the uneven composition of the judges gives you a true reflection of the case touching upon the greatest law in the land. Remember, any law that contradicts the provisions of the Constitution shall not hold.

In South Africa they have the Constitutional Court, with 11 or so judges based at the Constitutional Hill. The court is South Africa’s highest court and was set up when the democratic constitution was adopted in 1994.

Is it too late for Malawi to set up its own permanent constitutional court?

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