ConCourt Judges
justices Healey Potani, Mike Tembo, Dingiswayo Madise, Ivy Kamanga and Redson Kapindu

By Rick Dzida

It never rains but it pours for  Democratic Progressive Party (DPP) regarding its losses of court cases one after another. But where is the DPP as a party missing  the point ?

The adage that says that  a rat cannot win a case in a court of cats is very relevant  in this situation.

Analysing from a holistic point of view, DPP had little chances of winning this case as I elucidated in previous articles.

Firstly, the Malawi Judiciary  system is well known globally for nullifying the 2019 presidential elections. It was even awarded internationally for the job well done. To think of the same court that it can nullify the 2020 fresh elections is unfathomable.

DPP should have read the writings on the wall by analysing how the court has  handled  DPP cases in the past.

Inconsistencies emanating from DPP case rulings  leave a lot  to be desired:

a) The Constitutional court went ahead to nullify the 2019 presidential elections based on pure presence of irregularities even though the court found no evidence that such irregularities affected  the votes of any presidential candidate.

b) The same word ‘majority’ means 50+1 for presidential elections but it also means first past the post for parliamentary and councilors elections. This is total insanity and confusion engineered by the Constitutional court.

Back to the issue at hand, legally and procedurally, there are many questions arising from the DPP vs Attorney General case verdict:

a) Did it really require a panel of five judges to determine that the issue brought to the court is res judicata, a case whose verdict was already passed? 

Is it not fair to question to competency of Judge Madise who sent a res judicata case to the Chief Justice for certification?

What is the essence of  certifying a res judicata case  to be tried at constitutional court?

Isn’t it fair again to question the competency of the Chief Justice?

Is our Judiciary system in safe hands?

Why wasting time and resources to certify a case as constitutional court case when the issue at hand was res judicata in nature?

b)   Today, the Constitutional court has ruled that it cannot decide on the case that was already dealt by the same the High court. This is laughable and inconsistent. The same Constitutional court made a ruling that overrode the decisions of the higher court. The Constitutional court in 2020 interpreted the word ‘majority’ contrary to the ruling of the Supreme court of appeal.

If the lower court can override the decisions of the higher court, what stops the Constitutional court now from overriding the decisions of a single judge of the  same  High court? This is absurd.

c) It is still questionable whether  the DPP vs Attorney General case is res judicata in nature? I contend that it is not.  This case has not satisfied sufficient conditions for it to be res judicata:

i) Is it the same case that was tried by Judge Nyirenda? No. They are completely different cases with different parties, claims and reliefs.

ii)  Do they involve the same  issues? No.  They are different issues. The first was on the composition of MEC commissioners. The second one  was the constitutional interpretation after the appointment of some commissioners was rescinded.

The Constitutional court is illogical  and unreasonable to say that the claimants were supposed to lodge an appeal against  Judge Nyirenda’s verdict because they were not disputing that judgement.

iii) Are they making the same claims or are they seeking the same prayers or reliefs? No!! 

Malawi Congress Party (MCP) sought court interpretation on the composition of MEC commissioners and  the court rescinded the appointment of some commissioners. 

The case brought to the Constitutional court now sought the constitutional interpretation to determine if the commission was inquorate during the time of elections.

Furthermore, if the court would find that the Commission was inquorate, then the 2020 fresh presidential elections should be nullified. It does not require a rocket scientist to know that the prayer of nullification of 2020 fresh presidential elections was not sought in the MCP vs President Chakwera case.

iv) Are they the same parties? No. The previous case was between MCP vs President Chakwera. The case referred to the Constitutional court was between DPP vs Attorney General. No semblance of identities here.

My only advice to DPP is that it must tread carefully whenever it wants to seek court’s intervention. Paground silipali bwino.

Rick Dzidar


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