Malawi: Law Expert Faults Attorney General for Preparing MEC Appeal Submissions

10 February 2020

A South Africa-based Malawian law professor Danwood Chirwa has faulted Attorney General Kalekeni Kaphale for preparing the Malawi Electoral Commission (MEC) appeal submissions to the Malawi Supreme Court of Appeal challenging the Constitutional Court (ConCourt) judgement that nullified the May 21 2019 presidential election.

Kaphale: Constitutional Court declared he is compromised

University of Cape Town legal expert says there are some eye-popping things in the appeal papers that hint at desperation, loss of ideas or just plain incompetence on the part of MEC's lawyers and the Chair of the Commission, and a continuing abdication of responsibility the court was concerned with.

"Take for instance the fact that the papers show that they were prepared for MEC by the Attorney General. The judgement clearly says it was unethical for him to have represented MEC.

"Either the Attorney General has read the judgement, in which case he has deliberately chosen to act in contempt of court, or he has not read it, in which case he is incompetent and must be removed from office," says the law professor on his Facebook account.

He says the Constitutional Court has the options to throw out the papers on this ground and to hold both the Chair of MEC and the Attorney General in contempt.

Chirwa says equally mind-boggling is the fact that the Chair of MEC has sworn an affidavit in which she insults both the Constitutional Court judges and Parliament.

He says Justice Dr Ansah insults the judges by accusing them of making an order to conduct 'sham investigations'.

Chirwa said this after the Court found that the Commission acted incompletely and unlawfully, and abdicated it's responsibilities in conducting the presidential election.

"The senior judge also openly disrespects Parliament which she accuses without justification and evidence will conduct 'sham investigations' into the commissioners.

" How does a Supreme Court judge attack the judiciary and parliament at the same time? Ansah holds the singular distinction of being the first supreme court judge to attack the very branch of government to which she belongs simultaneously as she attacks Parliament which as a judge she's duty bound to respect," says Chirwa.

On this, he said Ansah has violated her oath of office, saying holding her in contempt of parliament and of court isn't enough.

He said this rises to an impeachable offence.

"What's puzzling is this: while on the one hand Justice Dr Ansah insults Parliament, on the other hand she usurps the power of Parliament by arguing that the court cannot order Parliament to enact relevant law: well, it can, as a natural consequence of a finding of unconstitutionality.

" There's a wealth of comparative case law in support. We have also heard the Speaker announce that parliament will implement the Court's decision. Now we have a situation where a Supreme Court Judge is refusing, seemingly on behalf of parliament, to implement the judgement," says Chirwa.

As to the question of stay which MEC has applied, Chirwa says a basic principle of law that once a decision maker has decided a matter they cannot decide the same matter again.

He says while civil procedure allows parties to seek stay from the court that made the order, the grounds on which the application is based are scandalous and aimed at bringing disrepute to court.

Chirwa says lawyers have a duty to observe decorum and give due respect to judges, whether they agree with their judgement or not.

"Because of the immature manner in which the papers have been written it is difficult to see how the stay serves the public interest. In particular it is not clear whether MEC wants the entire order to be stayed or only parts of it," said Chirwa.

Parliament's Public Appointments Committee is currently meeting the MEC commissioners over the sham presidential election.

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