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Malawi Court dismisses DPP’s election case with costs

ConCourt Judges

The High Court in Blantyre, sitting as Constitutional Court, has thrown out the Democratic Progressive Party’s application for the nullification of the 2020 Fresh Presidential Elections, describing it as an abuse of the court process and an attempt by the DPP to benefit from its own illegality.

The former governing party sought a constitutional interpretation after the High Court in Lilongwe, hearing Malawi Congress Party (MCP) vs President of Malawi, ruled that four Malawi Electoral Commission (MEC) commissioners were appointed illegally.

The DPP argued that since the four commissioners were part of the commission that managed the 2020 presidential elections, then the elections cannot be valid.

However, in preliminary objection, Attorney General (AG) Thabo Chakaka Nyirenda prayed for the case to be dismissed before the hearing of the main case because, arguing the DPP wanted to benefit from its own illegality.

In its ruling, the panel of five judges led by Justice Selvester Kalembera agreed with the AG on several grounds he raised before the court, praying that the case be dismissed

The Court agreed with the AG, saying nullification of Fresh Presidential Election as asked by the DPP will have the effect of having the DPP benefit from its own illegality as status quo in the presidency will revert to the period before the fresh elections.

“We cannot imagine a more classic example of one seeking to benefit from their own illegality than this.

“What we have are illegal nominations by the DPP followed by illegal appointments by the former President who incidentally is also the president of the DPP,” the court said.

The court also found that the issues DPP took to the court were already disposed of by the court in Malawi Congress Party (MCP) vs President of Malawi and what was needed after that case was an appeal, not a fresh case as commenced by the DPP.

“We find that it is an abuse of court process for the DPP to bring this application in the manner they have done.

“We have established that this matter is not only an appeal in disguise but also re-litigation. The fact that the DPP is crying out constitutionalism and rule of law does not change the nature of proceedings before us into a constitutional matter and does not compel us to sanction abuse of court process,” the court said.

“The Claimant is trying to re-litigate through the backdoor. In a popular parlance: he is trying to take a second bite at the cherry. This we will not condone.”

“We agree with the Attorney General that this Court cannot allocate to itself powers that have not been conferred upon it by the law.”

The Court further determined that DPP filed the suit incompetently by suing a wrong party.

“The Claimant commenced these proceedings against “The Attorney General (on behalf of the ‘Office of the President of the Republic of Malawi’)”. The Court’s finding is that there exists no juristic person known as the ‘Office of the President of the Republic of Malawi’.

“Whilst the Attorney General can be sued on account of the actions or omissions of the Government or a public officer, he is not sued in abstract. Since the ‘Office of the President of the Republic of Malawi’ is not a legal person, the Attorney General has been sued in abstract and is therefore a wrong party. The action is futile and the Court upheld the preliminary objection on this issue.”

The Court. therefore,  struck out the Claimant’s action in its entirety and further ordered the DPP to pay the cost to the Attorney General.

In June this year, the High Court quashed the appointment of four DPP commissioners Jean Mathanga, Linda Kunje, Steven Duwa and Arthur Nanthuru, saying their appointment was invalid and unconstitutional.

The court acted after the governing Malawi Congress Party had challenged the appointment of the commissioners.

In his ruling, Judge Kenyatta Nyirenda further said the quashing of the appointments did not affect the validity of the June 2020 re-run presidential election.

Below is a summary of the ruling:

Issue 1: Whether the Attorney General must take an oath of office in order to have standing in court.

2. The finding of the Court is that the framers of the Constitution did not intend for the Attorney General to take an oath of office. The Court finds that the Attorney General was properly before the Court. Consequently, the Court dismissed this preliminary objection.

Issue 2: Whether the High Court has jurisdiction to overturn or review its own decision, whether a High Court judgment can constitute a cause of action, and Page 2 of 5

whether the present proceedings are aimed at reviewing or appealing against a decision of the High Court on similar issues.

a. Effect of certification

3. The Claimant advanced the view that the certification rendered it mandatory for the Court to proceed with the determination of the questions in the Referral and to disregard the preliminary issues. Having found that the certification was made subject to the Referral and that Order 16 rule 6 of the CPR allows a court to consider preliminary issues, the Court concluded that the said preliminary issues were rightly before the Court and the Court was within its legal mandate in entertaining them. The certification does not have the effect alleged by the Claimant and the dismissed what the Claimant advanced herein.

b. Whether this matter is an appeal

4. The Court having established that the issues in these proceedings are the same as those in Malawi Congress Party v The President of the Republic of Malawi which was decided by the High Court, Lilongwe District Registry. Therefore, this was an appeal in disguise and this Court has no jurisdiction to entertain it. Consequently, the Court upheld this preliminary objection.

5. The finding is in the affirmative as the three prerequisite elements establishing res judicata (re-litigation) namely, existence of a final judgment, identity of parties and identity of subject matter obtain in this matter. Consequently, the Court upheld this preliminary objection.

d. Whether or not this court is functus officio

6. The concept of functus officio is inapplicable in the present case for the reason that it was not this Court which rendered the judgment in Malawi Congress Party v The President of the Republic of Malawi, which was registered as Judicial Review Cause no. 34 of 2020 and heard at the High Court Lilongwe Registry. Consequently, the Court dismissed this preliminary objection. But the matter is still caught by res judicata.

7. The Defendant argued that these proceedings were incompetent because the Claimant was relying on the judgment in Malawi Congress Party v The President of the Republic of Malawi as its cause of action. The Court having established that the judgment does not constitute a cause of action. Consequently, the Court upheld this preliminary objection.

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Issue 3: Whether the present proceedings should have been commenced by way of petition as opposed to summons.

8. The Court rejected the Defendant’s assertion that this is an election matter which should have been commenced by way of petition. The reason is that the three factors that must obtain in an election petition have not been satisfied, in that (i) the complaint did not arise “due to an act or omission during an election,” (ii) the Claimant had no right to be elected at an election and (iii) the Claimant was not a candidate at such election. The dismissed this preliminary objection. Notwithstanding the Court’s position on this issue, the Court has maintained its finding that this action is an appeal in disguise and/or an attempt by the Claimant to have a second bite at the cherry.

Issue 4: Whether or not the present proceedings are statute barred under section 100 of the PPEA, having been commenced more than seven days from the declaration of the result of the election.

9. Having established that these proceedings do not constitute an election matter the limitation period of seven days under section 100 of the PPEA does not apply. The Defendant’s preliminary objection was accordingly dismissed.

Issue 5: Whether a political party has locus standi to challenge the results of an election and whether the Defendant is a proper party to the present proceedings.

b. locus standi of the Claimant

10. Having established that this present action is an appeal in disguise and/or a re-litigation of the issues, the finding is that the Claimant lacks standing to approach the Court in the manner it has done by commencing fresh proceedings. The Court therefore dismissed this preliminary issue on that premise.

b. status of the Defendant as a party

11. The Claimant commenced these proceedings against “The Attorney General (on behalf of the ‘Office of the President of the Republic of Malawi’)”. The Court’s finding is that there exists no juristic person known as the ‘Office of the President of the Republic of Malawi’. Whilst the Attorney General can be sued on account of the actions or omissions of the Government or a public officer, he is not sued in abstract. Since the ‘Office of the President of the Republic of Malawi’ is not a legal person, the Attorney General has been sued in abstract and is therefore a wrong party. The action is futile and the Court upheld the preliminary objection on this issue.

12. Notwithstanding the Court’s position on this issue, the Court maintained the finding that this action is an appeal in disguise.

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Issue 6: Whether non-compliance with section 4 of the Civil Procedure (Suits by or against the Government or Public Officers) Act is fatal to the proceedings commenced against the Attorney General and whether the present proceedings can be dismissed for failing to comply with section 4 of the said Act.

13. The finding that the requirement for the section 4 notice requirement of 3 months cannot be dispensed with for the reason that these proceedings were commenced by a summons under Order 5 of the CPR. The Court upheld the preliminary objection on this issue.

Issue 7: Whether the Claimant having deliberately contravened the law in recommending the appointment into the Commission, more than three nominees, should be allowed to benefit from its own illegality and whether it should be estopped from challenging the decisions of the members of the Commission who were appointed into the Commission in contravention of section 4 of the Electoral Commission Act.

Issue 8: Alternatively, whether the present proceedings seek to benefit the Claimant from its own unlawful and illegal act.

14. These two issues were addressed simultaneously. The Court in Malawi Congress Party v The President of the Republic of Malawi specifically held that the conduct of the Claimant in nominating more than three names and the appointment of more than three Commissioners representing the Claimant to the Sixth Cohort of the Commission were illegal. The finding is that the principle relief sought by the Claimant, namely, nullification of the results of the FPE 2020 and the subsequent Parliamentary and Local Government by-elections, if granted, would have the effect of benefiting the Claimant from its own illegality, in that the status quo would revert to the pre-FPE 2020 political set up. The preliminary objection is upheld.

Issue 9: Whether or not the present proceedings are frivolous, vexatious and an abuse of the court process and a waste of the Court’s time.

15. Having found that these proceedings are an appeal in disguise or an attempt to re-litigate the issues in Malawi Congress Party v The President of the Republic of Malawi which are caught by the doctrine of res judicata, the Court concluded that the present proceedings are frivolous, vexatious and an abuse of the process of the court. The preliminary objection was upheld.

Issue 10: Whether or not the courts are there to offer gratuitous constitutional or legislative interpretation.

16. Under section 9 of the Constitution the Judiciary has the responsibility of interpreting the law within the context and framework of legally relevant facts and final settlement of legal disputes. The issues raised in this matter were dealt with to finality in the case of Malawi Congress Party v The President of the Republic of Malawi. The Claimant accepted both the rescission letter and the judgment in Malawi Congress Party v The President of the Republic of Malawi. This implies that there is no dispute for this Court to determine and that the

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Claimant merely seeks the Court’s advisory opinion. The finding is that the present matter is not within the jurisdiction and competence of this court. The preliminary objection was upheld.

Issue 11: Whether or not the matters herein are moot or academic.

17. Having established that no cause of action has arisen and that the Claimant has not shown that any dispute has been triggered and that the Claimant only seeks this Court’s advisory opinion, the Court concluded that the present matter is moot, hypothetical and academic. The preliminary objection is upheld.

Issue 12: Forum Shopping

18. Before making the final pronouncement the Court shared its observations on the malpractice of forum shopping, also known as judicial tourism, which the Court observed that it happened in this case.

ORDERS

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