By Sean Kampondeni
EVENTS OF JUNE 21, 2019, AS THEY UNFOLDED
The Constitutional Court Judges had said they’d sit to deliver their ruling on preliminary objections at 3pm. So at 2:30pm, Malawi Congress Party (MCP) President Lazarus Chakwera walked to the court premises from the M1 T-junction at Lilongwe Hotel, escorted by parliamentarians of his party who had just earlier walked out of Parliament in protest to Democratic Progressive Party (DPP) President Peter Mutharika while he was in the middle of delivering his address.
Behind them were hundreds of people marching to court with them, and as they approached the court, another throng which had been waiting for him on the court premises welcomed him with jubilation, chanting “boma!” over and over.
Upon arrival at the court, Chakwera sat on a bench outside, flanked by party officials, after which he was informed by court staff that the judges would be delayed by thirty minutes.
At the stroke of 3pm, he was asked to proceed into the court room, followed by other stakeholders, about twenty in all.
Inside, the eight legal teams were already seated at a round table like the knights of Camelot, an unmistakable air of pomp all about them, the only exception perhaps being the ever-unassuming comportment of Counsel Mordecai, his immensity notwithstanding.
Around the table was one legal team for Chakwera, one legal team for Chilima, one legal team for Mutharika, one legal team for Malawi Electoral Commission, one legal team for Malawi Law Society, one legal team for Women Lawyers Association of Malawi, one legal team for Zodiak Media, one legal team for Times Media, and registrars of the court, all Malawian.
In front of it, elevated by a full body length, was the bench for the Judges, their five seats empty, yet still impressing a sense of reverence upon the attendees on their behalf. Behind the table were the seats for the petitioners and their company, eight uncomfortable benches arranged in four rows with little leg room between them.
At 15:30 came and went with no sign of the judges. Just before the top of the approaching hour, the Attorney General stood up to announce that he had received word that the judges were about to enter the chamber, and so as a matter of practice, everyone had to exit the room to allow the judges to be the first to take their seats.
That way, when all others enter the room, they may do so as entering a court that is in session.
Everyone left and crammed into the narrow corridor outside, assuming the wait would only be ten minutes or less. An hour later, with the judges still not in the room, loud bangs were suddenly heard from outside, evidently of teargas being fired by police on the assembled crowd. It took the military to send soldiers onto the scene to calm things down, four of whom were sent to take defensive positions in the courtroom, which finally gave the Judges confidence to come in and sit, ending their 150 minute delay in proceedings.
Judge Healy Potani, the lead Judge, wasted no time, rushing through his pleasantries to get to what he described as “the business of the day”, and so began to read the introduction of a somewhat lengthy ruling that he said was the unanimous decision of the court. He began by waxing philosophical, citing sections of the Republic’s Constitution and judicial precedents from home and abroad to drive home two seminal beliefs of the court.
First, that the matter under consideration was of great importance, for it touched on both the efficacy of the people’s right to choose for themselves a government and the legitimacy of elected officials to govern them.
Second, that procedures of the court are only as a means to a greater end, to be used as a vehicle for delivering justice, not as an instrument for hindering it, and so courts have an obligation, in the interest of justice, to cure the errors that petitioners make in procedure, rather than to punish them for those errors by denying them access to the justice for which they prayed the court.
The rest of the Lead Judge’s reading was but a methodical thrashing out of the implications of that philosophy of jurisprudence on the present case. He thus proceeded to walk the parties through each of the three applications made to the court by MEC and APM, summarizing the arguments advanced by their counsels for each application and the counter arguments used by the counsels for Chakwera and Chilima against each.
MEC’s and APM’s first application was that Chilima’s petition should be dismissed because it is “irregular, incompetent, embarrassing, and incurably defective.” This, they argued, was firstly because the petition was not accompanied by a verifying sworn statement, and secondly because the sworn statement was added after the 7-day legally binding period for filing petitions had passed, and thiirdly because the petition was filed in reference to a section of the Parliamentary and Presidential Elections Act (PPEA) that does not relate to it.
The Court dismissed all three arguments, preferring a plain reading of Section 100 of the PPEA, which does not require that a petition be filed together with a sworn statement, and ruling that the petitioner had in fact cited the correct section of the act as the basis for his petition, despite his use of the word “appeal” in describing the petition, which the court understood to mean the same as the word “pray”, contrary to the respondents’ alternative understanding.
As such, on all three points, Chilima’s petition was not found to be irregular, or incompetent, or embarrassing, or defective. It stands.
MEC’s and APM’s second application was that Chakwera should be removed from participating in the proceedings because he did not qualify as a petitioner, since, it was argued, there was no petition from him before the court within the first 7 days of the announcement of results by MEC on May 27.
Additionally, a third application was made, also against Chakwera, praying the court to dismiss the petition he submitted to the court on June 3rd, since, it was argued, that petition was “irregular, incompetent, embarrassing, incurably defective”, and potentially fraudulent.
The judges ruled on both applications together, finding that APM’s lawyers erred in their nuclear assertions, understandably so, because the petition they were served by Chakwera had irregularities in the form of clerical errors related to collation of pages, which errors did not appear in any of the petitions Chakwera had served to the rest of the parties, including the judges, proving that there was no deceit involved.
Similarly, the court found that other errors related to court fees and receipts were evidently clerical errors made by administrators of the court who facilitated the filing of the petition, through no fault of the petitioner.
As such, the court dismissed both applications and elected to give guidance to cure the clerical errors highlighted by the third application, for even though they were irregularities, the court rejected the view that they were incurable in nature. And so Chakwera’s petition was ruled lawful and regular. It stands.
I walked out of court and proceeded to locate my car, only to find that in the confrontation between the teargassing police and angry crowds outside court two hours earlier, the windows of my car had been smashed in with a giant rock. Upon close inspection, I saw that the backpack I had hidden in the back had also been taken, containing my laptop, tablet, bank cards, and IDs.
And so while I was witnessing one crime being defeated inside court, another one was being committed against me outside court. I mention this only to point out that suffering this loss outside court right off the back of a win inside court, reaffirmed me in my conviction that there are limits to what the courts, the police, the army, the schools, and the laws can do for us.
One sure thing they cannot do is turn the human heart from devising the theft of votes and backpacks, for it is the heart that is irregular, incompetent, embarrassing, and defective.
Shalom!!!!
Disclaimer: Views expressed in this article are not necessarily the views of the Publisher or the Editor of Maravi Post
