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

DDP’s COUNTERAGUMENTS AGAINST AG’S REMARKS THAT THE CASE SHOULD BE DISMISSED

AG : The  application by the DPP was not supposed to come before the high court sitting as a Constitutional Court.

DZIDA: This is water under the bridge now. The case was already certified as a constitutional matter. This means that the Chief justice saw the merit that this case draws questions that need constitutional interpretation

AG: According to Nyirenda, the decision that DPP is challenging emanated from a judgement by a High Court Judge Kenyatta Nyirenda who nullified the appointment of Linda Kunje and Jean Mathanga. Nyirenda has argued that DPP was supposed to  challenge the decision  in the Supreme Court of Appeal.

DZIDA: This is a gross error. DPP is not challenging the decision of the High court that rescinded the appointment of Jean Mathanga , Linda Kunje, and others. Therefore, this case is not an appeal. This is  the very same reason the chief justice certified it as a constitutional case.  DPP accepted the ruling. Having accepted the judgement, DPP wants the constitutional court to interpret the constitutionality of MEC when it was conducting 2020 fresh presidential elections

AG:  DPP is not a proper party  to challenge the decision. According to Nyirenda, a presidential candidate  of the party is supposed to challenge the election. He cited the Presidential Election Petition Case which was commenced by President Lazarus Chakwera and Vice President Saulos Chilima leaders of MCP and UTM respectively:

DZIDA: Here is another goof from AG. Which decision is  DPP challenging? As already pointed out, DPP is not challenging the decision of the High court to rescind the appointment of DPP MEC commissioners. Again, DPP is not challenging the results of the fresh presidential elections. DPP is only seeking the interpretation of the constitutionality of MEC following the rescinding of appointment of DPP MEC commissioners. DPP further prays that  2020 fresh presidential elections should be nullified IF the court finds that the composition of MEC was unconstitutionally formulated. The Judicial system in Malawi is an open system such that any individual or any party can initiate the interpretation of the constitution

AG:  The law provides seven days for an aggrieved party to challenge declared results of an election and that DPP filed  its application when the seven days expired.

DZIDA: This is another pathetic error from our learned AG. Again, DPP is not disputing the 2020 fresh presidential elections results. It  is only seeking the constitutional interpretation following the decision of High  court to rescind the appointment of DPP MEC commissioners this year. It is absurd to insinuate that DPP could have complained to the High court about the interpretation of the constitution soon after the elections , months before the ruling on the status of MEC commissioners was delivered

AG: DPP created  the irregularity on the two Mec commissioners and it cannot  turn   and ask the court to reward it  for its own irregularities. Nyirenda argued that the court cannot be in a business of rewarding  irregularities.

DZiDA: How did DPP create an irregularity? DPP as a party had no mandate to appoint MEC commissioners. They  only submitted names of candidates for the position of MEC commissioners subject to their appointment by the former head of state, Prof. Arthur Peter Mutharika. Furthermore, DPP is not seeking any benefit. It only wants the court to interpret the constitutionality of MEC at the time 2020 fresh presidential elections were conducted. In fact, the beneficiaries from the case are the constitution, justice, and democracy at large. No individual will be a winner nor a loser if the fresh presidential elections are nullified because each presidential candidate will need to seek  their electoral legitimacy at the ballot box

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