Malawi: Chakwera's Lawyer Asks Malawi Supreme Court to Toss Out Appeal Against Vote Re-Run

15 April 2020

Malawi Congress Party (MCP) president Lazarus Chakwera's lead lawyer Mordecai Msisha - Senior Counsel (SC) - has asked the Malawi Supreme Court of Appeal to dismiss an appeal against a Constitutional Court judgement that overturned the May 2019 presidential election.

MCP president Lazarus Chakwera (L) with party secretary general Elsenhower Mkaka captured on camera before entering courtroom of the Malawi Supreme Court of Appeal.-Photo by Lisa Kadango

Presenting his arguments against the submission of the first and second appellants - President Peter Mutharika of Democratic Progressive Party (DPP) and Malawi Electoral Commission (MEC), Msisha SC argued that MEC has the duty to ensure compliance of electoral laws.

"MEC behaves as if it was primary party," he observed.

He said the Electoral Commission should have been a neutral arbiter managing the polls and "not to defend wrongdoing; hide documents... "

Msisha said "an election is a process that is mandated by law - Presidential and Parliamentary Elections (PPE) Act."

He said: "There was no much that was wrong, so such that was contrary to statutes."

On the the 50-percent-plus-one rule of electing a president, Msisha said Supreme Court interpretation of Section 80 (2) can be taken into account with the Constitution Court interpretation and that while the Supreme Court Judgement is more binding than the High Court judgement, it can provide clarity in clear pointer to the present case.

"The lower court did not say we are going to ignore the decision in the Chakuamba case . The lower court recognises that was a decision that was made [by the Supreme Court]."

He said looking at the meaning of majority it never means just more than.

Msisha continued: "When you use the term majority you are signifying above the medium point which is 50 percent mark. So the lower court in fairness considered the Chakuamba decision."

Msisha said declaring a winner on whosoever has a vote ahead the other is "recipe for mischief, its an invitation for mischief."

He stressed that it is "absolute chaos".

MEC declared Mutharika winner of the May 21 2019 presidential election with 38 percent of the votes. He was followed by Chakwera, with 35 percent and UTM Partly leader Saulos Chilima amassed 20 percent.

The Constitutional Court in February annulled the results of the May 2019 poll and ordered a re-run, citing "grave" and "widespread" irregularities including the use of correction fluid on tally sheets.

In his appeal papers, Mutharika said the judges had "erred in law" and asked the Supreme Court to reverse the judgement.

The president described the ruling as "a serious miscarriage of justice and an attack on the foundations of the country's democracy".

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