Malawi Law Society Submissions in Polls Case 'Appalling', Says Legal Scholar - Largely Copy and Paste

19 December 2019

Professor Danwood Chirwa, a legal expert based at South Africa's Cape Town University has said the submissions in the presidential elections nullification petition case by Malawi Law Society (MLS) as friends of the court, are "appalling" and of no value to the case.

Dr Danwood Chirwa: MLS submission were full of copy and paste MLS lead lawyer, Alick Msowoya Lawyer Powel Nkhutabasa : Prepared the submissions Burton Mhango the president of Malawi Lawc Society

MLS submission, prepared by private practice lawyer Powell Mkutabasa and MLS lead counsel in the matter Alick Msowoya, 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.

Msowoya told the Court on Thursday that the law society's position is not siding with any party to the case but simply to guide the court on points of law.

The panel of judges hearing questioned MLS lawyers on several points in their submission and also absence of their position on several key questions on the matter.

Among others, Justice Redson Kapindu asked lawyer Msowoya on whether the court should place more importance to the rights of the voters or rights of candidates, one area in which the MLS submission to the court does not address

In his commentary, legal scholar Chirwa has since rubbished the MLS submissions, saying they represent the handwork of "lazy, reckless and incompetent counsel who has no understanding of the significance of the task at hand and just want a photo opportunity in a high profile case."

Chirwa states that friends of the court are not just admitted to the court for the sake of it but have to offer something that is insightful and unique from what the parties through their lawyers have provided.

"Crucially they cannot present poorly what the parties have already presented better," he pointed out.

Chirwa pointed out that the Law Society which is led by Burton Mhango has its submissions full of "cut and paste" the description of the issues and reliefs sought by the parties, all of which is well known to the court.

"Somewhere they indicate what the MLS would submit on, but there's no indication why it is necessary for it to submit on those areas. In fact it turns out the MLS is submitting on the very issues the parties have extensively submitted on, and in every way better in terms of the quality of the analysis, research and argumentation," observed Chirwa.

Chirwa noted that MLS merely cut and paste legal provisions with no analysis.

"It's as if the judges don't have the statute and constitution. On one of these pages counsel for the MLS claims, without substantiation, that the quoted provisions represent what the practice of elections is, and yet this is the very issue in contention - whether the elections were conducted on accordance with those provisions," he stated.

He said MLS address legal issues that the parties have extensively argued about in detail and pointed out that awful submission is a demonstration of "shoddy research and analysis."

Chirwa critique: "How could the whole MLS be so irresponsible to give such an important brief to the people who drafted these heads? Did the entire committee/executive look at them? If there's no capacity why not ask people who could have helped?

"It's given that these submissions have brought the MLS into disrepute. I would move to disbar anyone who was involved in producing such poor work. But this won't be taken up, and we know why."

According to Chirwa he saw no merit in Malawi Law Society in their involvement as a body that fails to regulate and discipline their own members, saying they could not have any moral ground to provide advice when their known motive has been protecting wrong doers who happen to have even unlawfully made financial gains from their victims.

In his post on social media, Idriss Ali Nassah w a fierce social and political commentator, added his voice to hit at MLS that they don't seem to understand or appreciate the magnitude of the presidential election case and its implications.

"How else could they put together such a poorly written, badly argued document holding no intelligible insights and offer it to court? Take time to read the submissions for yourself and your jaw will drop at how bereft of meaningful legal thought and strategy it is.

"For a long time we were convinced that MLS had it together but, apparently, no longer. Another day, another time, we shall perhaps understand why MLS chose the occasion of the most important case in our recent history to play the clown, and discredit the good name that the society had built over many years," Nassah says.

In the case being heard by the High Court of Malawi sitting as the Constitutional Court, UTM Party president Saulos Chilima (first petitioner), Malawi Congress Party (MCP) president Lazarus Chakwera (second petitioner), want the court to nullify the presidential election results in the May 21 Tripartite Elections over alleged irregularities, especially in the results management system.

President Peter Mutharika of Democratic Progressive Party (DPP), by virtue of being the declared winner of the presidential race, is the first respondent while the Malawi Electoral Commission (MEC) is the second respondent.

The ppetitioners in their submissions, separately, allege that there was non-compliance with electoral laws, and in that regard cite alleged vote tampering at polling centres, Constituency Result Tally Sheets, District Results Tally Sheets and National Tally Centre.

The submission says MEC, however, ignored evidence of such electoral fraud and irregularities, hence the electoral process was non-compliant with the Constitution and the Electoral Laws.

Chakwera and Chilima, in their separate submissions, further agree that MEC was negligent in the administration of the elections and failed to ensure the security, transparency, openness, verifiability, accuracy and other essential features of an election process that is free and fair.

The five High Court judges hearing the case are Healey Potani, Ivy Kamanga, Dingiswayo Madise, Redson Kapindu and Mike Tembo. They are expected to deliver their determination in the next 45 days.

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