By Mayi Chibwe

Malawians in  Mangochi and Blantyre have vowed to defend Constitutionalism by all means  following Judge Kenyatta Nyirenda’s  overreaching ruling that Malawi Electoral Commission (MEC) was illegally constituted.

“The Democratic Progressive Party (DPP) respect every court decision

“The Democratic Progressive Party (DPP) respect every court decision because they are led by one of the framers of the Constitution, Professor  Arthur  Peter Mutharika but we will not sit back and relax when illegality is used to force an agenda  that uphold the same illegality”, argues Mike Chingota representing a group of people ready to defend Constitutionalism in Mangochi and Blantyre.

DPP has prayed to court to nullify the 2020 elections on the basis of Kenyatta Nyirenda’s ruling that the Commission was illegally instituted.

What catches our attention, however, is not the DPP prayer to the court but Charles Mhango’s confidence in the case.

A journalist from one of the pro government media tried to ask him an intimidating question if Mhango thinks Judge Nyirenda made a mistake in his ruling.

Judge Kenyatta Nyirenda committed a profoundly serious error

” Yes, Judge Kenyatta Nyirenda committed a profoundly serious error, he was acting in his capacity as High court judge in his ruling but to assume the role of the Constitutional Court and declared that elections conducted by an illegal commission won’t  be affected,  he made an error. The Constitutional Court must at least be made up of three (3) or five (5) judges to deliver a ruling, so he was very wrong”, argued Mhango.

From Mhango’s confidence, there are some important things to note but we will focus  only on 2 of them.

The ConCourt did not find any evidence of rigging

Fast forward to Constitutional Court ruling on the nullification of 2019 elections, the Court did not find any evidence of rigging nor anything wrong on the part of Second respondent and first respondent that could otherwise affect the credibility of the polls. The court simply nullified the elections on the basis of illegal Constituency Tally Centres, illegal Duplicate Sheets, and illegitimate evidence and/or decisions made in absence of Commissioners, the only people mandated by law to make binding decisions.

Even the sexed  definition of majority was made in the spirit of Constitutionalism,  and it should not be any difficult to make similar decision on the basis of  the much clearer Section 75 that demonstrates how a Commission should be composed.

The Constitutional Court ruling demonstrated, beyond doubt, that the nullification was on the basis of upholding Constitutionalism , nothing else. Even though the much touted tippex was presented in court as evidence, it was found that it had no serious implications on the real numbers to affect the outcome of the elections.

The other important thing from Mhango’s comment is how he chooses to focus on real issues. The pro government media expected him to talk about Nyirenda’s error on the lens of fired Commissioners. But he chose to talk about it on the basis of Defending the constitution.

It is much interesting to realise that, in all this court battle, the Democratic Progressive Party (DPP) has chosen to fight  for Constitutionalism, not power. The DPP still commands a following of over 2 million adults of voting age but has chosen to comply with Nyirenda’s judgement by submitting names of new Commissioners even though they have serious reservations in  Nyirenda’s ruling.

Such a political party that always comply with decisions of the court even at the lowest moment of the courts should never be taken for granted and the courts have the chance to put Malawi first as they reveal Nyirenda’s decision following DPP’s prayer.

In Whatever decision the court make on DPP’s prayer, Malawians will not take anything less than Constitutionalism and let history judge those on the wrong side of the law.

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