Mike Charles Banda bemoaned the biases and straight forward hostilities the Malawi Judiciary has shown towards DPP especially its leader Former President Peter Mutharika. So, Mike shared on Facebook the following:
The DPP has sued in court for a declaration that, as a result of the poisoned tree, the poisonous fruit cannot be ingested. A crab cannot give birth to a bird. In effect the declaration of the current president, parliamentarians and officials as duly elected in the 2020 elections, by the very same commissioners, should be set aside.
A fresh election should be ordered. It is a sound legal argument, it is rational, and makes a lot of common sense. But judging by the history of court antagonism towards the DPP and Mutharika, rather pray for miracles.
the judicial bag of tricks is bottomless.
Dr Sunduzwayo Madise once wrote the below
There is only one institution mandated to interpret the law, that is the courts. Former President Peter Mutharika is within his mandate to file a case as a contestant of the 2020 elections, something he has already done. Whether the court would entertain the suit is a subject for another day.
But there is one fundamental and fatal flaw in the statement that MEC was illegally constituted. He is, after all the one who constituted and populated MEC. If he illegally constituted MEC, then he cannot benefit from such illegality. There is a Latin maxim which says ex turpi causa non oritur actio (from an illegal act no action may rise). The law does not allow a person to benefit from his own illegality. Furthermore, the election took place under his watch. If MEC was then legally constituted (unless he accepts that he illegally constituted it), then he may as well answer the first part of his question. If he says he illegally constituted it, then he cannot benefit from the illegality (ex turpi)
This is a nonsensical and not a legal argument. Former President Peter Mutharika did not say that he was “illegally constituting the MEC”. He legally constituted the MEC, and MCP and the now President (Chakwera) argued that it was illegal.
The legality of the appointment of the commissioners was after the fact.—– Dr Sunduzwayo Madise
Since the Malawi Congress Party (MCP) and its president say that the Commissioners were illegally appointed, then it is the Malawi Congress Party (MCP) and chakwera who must not benefit from an illegal action.