Malawi Law Society (MLS) and Women Lawyers Association (WLA), as friends of the court in the presidential elections nullification petition case have urged the five-judge panel of the Constitutional Court to make its determination based on law and evidence presented.
Malunga speaking to reporters MLS lead lawyer, Alick Msowoya Lawyer Powel Nkhutabasa : Prepared the submissions for Malawi Law Society
The two parties' submissions during oral session on Thursday in Lilongwe followed submissions filed by UTM Party president Saulos Chilima (first petitioner), Malawi Congress Party (MCP) president Lazarus Chakwera (second petitioner), President Peter Mutharika of Democratic Progressive Party (DPP) as the first respondent and MEC.
In the case being heard by the High Court of Malawi sitting as the Constitutional Court, the petitioners want the court to nullify the presidential election results in the May 21 Tripartite Elections over alleged irregularities, especially in the results management system.
Making the oral submission Malawi Law Society lead counsel in the matter Alick Msowoya, asked the Constitution Court to ensure right of voters and candidates are balanced.
The submissions were prepared by private practice lawyer Powell Mkutabasa and Msowoya.
MLS has highlighted to the court what the law states on various issues under contest while attempting to desist from giving its opinion on the matter.
The areas include constitutional provisions directly relevant to elections and determination of its reference, provisions of the Presidential and Parliamentary Elections Act (PPEA) directly relevant to the elections and determination of petitions, burden of proof, standard of proof, admissibility of hearsay evidence, effect of admissions by any party and effect of bringing forth relevant witnesses.
Women's Lawyers Association (WLA) lawyer Dr Bernadette Malunga in her submission asked the Court to ensure that duties and mandate of Malawi Electoral Commission (MEC) were followed during the May 21 elections.
On the burden of proof, Women's Lawyers Association recommended that the standard of balance of probabilities is with the one who have brought the matter to court to bring evidence.
"We submit before the court that the burden of proving the complaints in the petitions is that of the petitioners. The petitioners must adduce adequate evidence to prove that there was an undue return of the election results as announced on May 27 2019.
"[But] once a prima facie case is proved, then the respondents [MEC], as a regulator, has an obligation to adduce evidence to the contrary failure of which the claims in the petition will have been successfully proved."
President Peter Mutharika of Democratic Progressive Party (DPP), by virtue of being the declared winner of the presidential race, is the first respondent.
The five High Court judges hearing the case are Healey Potani, Ivy Kamanga, Dingiswayo Madise, Redson Kapindu and Mike Tembo.are expected to deliver its judgement of the case after 45 days from December 21.