The Constitutional Court in the ongoing presidential election court petition case has censored the Malawi Electoral Commission (MEC) for its conduct particularly for appearing to act in collusion with the Democratic Progressive Party (DPP) presidential candidate Peter Mutharika's lawyers.
Kaphale, joined by other lawyers, is representing MEC, being government's chief legal adviser
This follows the query by lawyers for UTM Party and Malawi Congress Party (MCP) presidential candidates over the alleged partisan role played by Attorney General (AG) Kalekeni Kaphale and the slow pace of the case.
Kaphale's role first came into question after the AG, who is representing MEC, stood to address the court on a debate about cross-examination while lawyer Frank Fraouk Mbeta representing Mutharika was addressing the court.
Justice Healey Potani, who forms part of the five-judge panel hearing the case, said in Tuesday said MEC should reflect the position as a neutral arbitrator.
"Our position is that the conduct of the second respondent (MEC) in these proceedings should reflect that position as a neutral arbitrator in these matters notwithstanding the common interest between the first respondent (Mutharika) and second respondent (MEC)," said Potani.
"Another aspect, the overall scheme of proceedings emanate from the electoral process in which the first and second petitioner (Saulos Chilima and Lazarus Chakwera respectively), and first respondent (Peter Mutharika) participated and the second respondent (MEC), took a role of a referee," he added.
President Mutharika, who was declared by MEC as winner in the May 21 2019 presidential race, is the first respondent and the electoral body is the second respondent
Menwhile, MEC has not gazetted the May 21 Tripartite Elections results within the stipulated time, contravening the Parliamentary and Presidential Elections Act (PPEA), according to published reports.
Section 99 of the PPEA stipulates that: "The commission shall publish in the Gazette and by radio broadcast and in atleast one issue of a newspaper in general circulation in Malawi the national result of an election within eight days from the last polling day and not later than 48 hours from the conclusion of the determination thereof... "
MEC director of media and public relations Sangwani Mwafulirwa has confirmed the electoral body had not gazzetted the results yet but is in the process of doing so, saying " that does not invalidate the results."
Law experts said there was no direct implications of the failure by MEC to gazette the election results,saying it could be a mere 'formality.'
The May 21 Tripartite Elections were announced by May 27 following the vacating of an injunction stopping the announcement of the presidential poll results, at the High Court Lilongwe registry which had been granted to the MCP days earlier.