By John Saukira
LILONGWE-(MaraviPost)-The documents have already been filed with courts that Malawi Electoral Commission (MEC) Lawyers wants High Court to nullify and reverse certification of non compliance which court issued against MEC.
The Lawyers have written Malawi High Court through the registrar of challenging the certification.
DR Saulos Klaus Chilima is the First Petitioner , Dr Lazarus McCarthy Chakwera of Malawi Congress Party is the 2nd Petitioner while professor Arthur Peter Mutharika is the First respondent and MEC is the Second respondent in the case in which first and second petitioner are asking court to nullify May 21 polls citing mass regularities.
MCP on June asked disclosure of various cites including poll sheets which court granted by giving 11 days for MEC to comply before issuance of the non compliance certificate.
However on Thursday morning MEC Lawyers applied to the court to set aside certificate of non compliance and asked for extension of time for disclosures.
“Order 2 rule 3 and Order 3 rule 5 and Under Inherent Jurisdiction of the Court let all parties attend before the Constitutional Court in chambers on the hearing of an application by the 2nd Respondent for an order setting aside the certificate of non-compliance dated 11th July, 2019 for irregularity and for lack of merit and further for an order extending time for disclosures.
Take notice that the sworn statements of Tamando Chokotho and Deverson Makwete shall be read in support of this application.
ANY sworn statement in opposition must be filed and served at least days before the above-mentioned return date.” Reads the application in part.
In a seperate interview, MEC Director of Legal Affairs David Matumika Banda on Friday said that it is not correct to say that MEC failed to comply.
“It is not correct that the Commission has failed to comply with the order. Some of the items listed in the order were owing to volume supposed to be accessed by the Petitioners at the Commission’s warehouses and they were duly invited. The petitioners chose not to make themselves available to have access to the materials.
“Even in cases where they made themselves available the Petitioners picked and chose what they wanted. Therefore, they can’t sincerely assert that there is non-compliance on the part of the Commission. Such a position can only be taken with the intention of misleading the Court.” Said Counsel Banda.
Chief Justice Andrew Nyirenda certified the case as a constitutional matter and assigned a five-judge panel comprising of Hon Healey Potani, Mike Tembo, Dingiswayo Madise, Ivy Kamanga and Redson Kapindu.
Below is the full version of the sworn statement:
IN THE HIGH COURT OF MALAWI LILONGWE DISTRICT REGISTRY
CONSTITUTIONAL REFERENCE NUMBER 1 OF 2019
(Being Consolidated Election case Numbers 16 and 26 of 2019)
DR SAULOS KLAUS CHILIMA , 1ST PETITIONER
DR LAZARUS MCCARTHY CHAKWERA , 2ND PETITIONER
PROFESSOR ARTHUR PETER MUTHARIKA – 1ST RESPONDENT
ELECTORAL COMMISSION – 2ND RESPONDENT
SWORN STATEMENT IN SUPPORT OF APPLICATION TO SET ASIDE CERTIFICATE OF NON- COMPLAINCE
I, TAMANDO LAMA CHOKOTHO, of Messrs Churchill & Norris of Top Floor, Ridgeview Investments Building, Johnston Road Corner Masauko Chipembere Highway (Opposite NBS Bank) Ginnery Corner, P.O. Box 32293, Chichiri, Blantyre 3, Legal Practitioners for the above – named Defendant do hereby make oath and say:-
- I have the conduct of this matter on behalf of the 2nd Respondent and I have authority to make this sworn statement.
- This sworn statement is made on the 12th day of July 2019.
- The matters of fact referred to in this sworn statement are from my knowledge and others are from my information and belief obtained through my conduct of this matter.
- I have been served a certificate of non-compliance dated 11th July 2019 at around 4:53 pm.
- On Sunday 7th July 2019, Counsel David Matumika Banda sent an e-mail at 10:13 pm inviting the parties to the matter to inspect documents and accept service of copies of the same at the electoral Commission premises. I was copied into the e-mail. Exhibited hereto and marked TC 1 is a copy of the e-mail.
- In the meantime, all documents that the Court ordered for disclosure have been ready for inspection and service at the electoral Commission and comprise of numerous lever arch files for each party in excess of 40 lever arch files for each party to the matter.
- I did on 11th July 2019 at 13:09 call Modecai Msisha SC to enquire whether he could consider collecting the files and I explained the bulkiness of the material.
- Senior Counsel Msisha promised to consult with Counsel Mvalo and Counsel Likongwe and revert to me with their response.
- Senior Counsel Msisha did not call me back as promised and instead our Lilongwe office was served with the certificate of non-compliance at 4:53 pm.
- It may be noted that neither the Order for disclosures and the nor the rules require the party disclosing to effect service of the documents and as such the call for the petitioners to inspect and accept service is not a violation of the rules or the order of the Court.
- I have noted that the petitioners have referred to some log books that are in the warehouses in the custody of parliament in the Southern Region.
- Inspection at the warehouses of Parliament took place on 3rd and 4th July 2019.
- On 4th July 2019, when it became apparent that we would not complete the inspection, I did make an application for the extension of time for inspection which the Court denied.
- Furthermore, the Court unilaterally varies the Order on disclosures by direction the Registrars present, Hon T. Masoamphambe and Hon Chirwa that the Petitioners should select which documents should be disclosed.
- At the inspection in Blantyre, where I was present, this Hon Masoamphambe did indicate that from what he saw, there would be need of about 30 days to complete the exercise of inspection. This was said in the presence of all Counsel representing the parties to the matter except for the Counsel for the 1st Petitioner who had left the premises without taking leave.
- I am informed by Counsel Dr. Steve Kayuni that similarly, the exercise in Mzuzu was not completed due to time.
- In the circumstances, disclosures of log books, counterfoils and voter registers was compromised as observed by Counsel Dr Chikosa Silungwe in a text message on the Constitutional case management whatsapp group at 9:13 am on 4th July 2019 when he wrote a midday writ off when the petitioners are still in the process of inspection breaches the Court Order and the administrative arrangement agreed upon a Tuesday 2nd July 2019.
- On 8th July 2019, the Chief elections Officer wrote a letter to the Court disclosing the documents that log books that are available for inspection and disclosures at the 2nd Respondents premises.
- In the circumstances, failure to make disclosures that are in the custody of the 2nd Respondent is by the Petitioners avail themselves for inspection documents in the warehouses of parliament, there was failure due to the amount of time.
- On 5th and 6th July 2019, the Petitioners inspected and received disclosures of all matters relating to computers at the 2nd Respondents premises and that is why the petitioners have not raised any issue relating to the inspection of computers.
- I therefore humbly pray for an Order setting aside the certificate of non-compliance and extending time within which to make disclosures.
Sworn by the said
TAMANDO LAMA CHOKOTHO at Blantyre.