By Nenenji Mlangeni
To put it simply, in this case, I have observed that there were two legal approaches, which were strategically taken by the two opposing parties.
Dr. Saulos Chilima and Dr. Lazarus Chakwera’s lawyers of Malawi Congress Party (MCP) and UTM Party respectively approached their case using the constitutional tactic.
They based all their arguments using constitutionality as a technique. They largely used the constitution, which is the supreme law of the land.
Malawi Electoral Commission (MEC) and President Peter Mutharika’s lawyers relied heavily on the statutory technique. They advanced their defence on the existing legal statutes.
Each one of them made their case, at least to the best of their ability.
Now, the court in making its decision on the matter has had to adopt an approach – and whichever approach the court has taken, will determine who will emerge victorious in this case.
If the ConCourt has taken the constitutional approach in this matter then lest be assured that the petitioners, Dr. Chilima and Dr. Chakwera will carry the day.
However, if the ConCourt decided to take the statutory approach then Professor Mutharika will on Monday have a field day over his political nemesis.
As I have earlier said, there could be a possibility that the judges went into hearing this case with an already made final answer to the case and had to painstakingly sit gruesomely on the case for a hell lot of scorching and sweltering days in the courthouse that lacked air-conditioned facilities as a matter of procedure – although they were already decided.
It is also possible that the five judges went into the case, undecided and with an open mind – all this, doesn’t matter any more, what masters now is which one of the two approaches the court has taken.
If the five Judges or a majority of them, which is a minimum of three out of five agrees that using fake documents, unsigned tally sheets, usage of unmerritted and criminally obtained correctional fluid , styled Tippex among others are constitutionally sound and that the irregularities were just as a result of a human error and that their (irregularities) impact was of very little or of no effect to the final result acvording to the statutes then things will be “as were!”
On the contrary, if the Judges in their majority that the rule of law was not properly followed during the electoral process in line with the supreme law of the land, that it is illegal to use forged signatures, counterfelt documents, unsigned tally sheets or having one person having to sign documents in both Rumphi and Mzuzu which is 100 km apart is criminal and not in tandem with the tenets of the constitutional requirements on which this country is founded on, then fresh elections are abound and imminent.
The overall decision depends on the approach the court has taken, all in all in this historical case. Will the court maintain what’s in the case laws or depart from it and set a new precedent as regards elections case in Malawi?
All and above, whatever the outcome, this case is a landmark milestone and monumental to our democracy and the justice system. All things elections will never be the same!
The approach taken by the ConCourt is the deciding factor.
Fasten you seatbelts. The time is now. The defining moment.
Viva Malawi!