High Court Judge Dingiswayo Madise on Monday July 5, 2021 refused to hear a State application to dismiss a case where the erstwhile ruling Democratic Progressive Party (DPP) is seeking the nullification of the results of the June 23, 2020 fresh presidential election.
Instead, the Judge has referred the matter to the Chief Justice for certification as a constitutional matter and to empanel a constitutional court to hear it.
Lawyer representing the DPP Charles Mhango prayed to the court to refuse the State application filed by Principal State Advocate Neverson Chisiza, on behalf of the Attorney General, asking the court to throw out the DPP lawsuit.
In his ruling, Justice Madise agreed with the DPP legal counsel but observed that since the matter raises serious constitutional issues, he had decided to refer it to the Chief Justice for certification as a constitutional matter.
The DPP recently moved the courts to nullify the results of the fresh presidential election, where the incumbent President Lazarus Chakwera was declared winner against DPP’s Peter Mutharika, arguing that the Malawi Electoral Commission (MEC) commissioners who managed the process and certified the results were illegal.
DPP’s line of argument follows a recent court ruling by Justice Kenyatta Nyirenda who said the appointment by former President Mutharika of four DPP nominated MEC commissioners, Arthur Nanthuru, Linda Kunje, Jean Mathanga and Steve Duwa.
The ruling Malawi Congress Party (MCP) recently sued the Presidency, under President Chakwera, for appointing more DPP MEC commissioners than the minimum number of three while the MCP only had two commissioners instead of three in contravention of the law.
In his ruling, Justice Nyirenda concurred with the MCP and ordered the reconstitution of the Malawi Electoral Commission by President Chakwera.
Apparently seriously aggrieved, the DPP filed a case against the Attorney General on behalf of the Office of the Republic of Malawi, praying to the court to annull the election results that the concerned commissioners had certified.
The DPP has cited, among its arguments, Section 75 (1) of Constitution, which provides that “There shall be an Electoral Commission which shall consist of a Chairman who shall be a Judge nominated in that behalf by the Judicial Service Commission and such other members, not being less than six, as may be appointed in accordance with an Act of Parliament”.
The DPP argues that it therefore follows that there was no legally instituted Electoral Commission when the fresh presidential election was held if Justice Nyirenda’s ruling is anything to go by and, therefore, President Chakwera was not duly elected.
Should the constitutional court rule in favour of the DPP, it may also restore Mutharika as President and Saulos Klaus Chilima as State Vice President.