Law and order, Top News

#Malawi Election Case: MEC wants certification of non compliance nullified

Maravi Post Reporter

By John Saukira

LILONGWE-(MaraviPost)-The documents have already been filed with courts that Malawi Electoral Commission  (MEC) Lawyers wants High Court to nullify and reverse certification of non compliance which court issued against MEC.

The Lawyers have written Malawi High Court through the registrar of challenging the certification.

DR Saulos Klaus  Chilima is the First Petitioner , Dr Lazarus  McCarthy Chakwera  of Malawi Congress Party is the 2nd  Petitioner while professor Arthur Peter Mutharika is the First respondent and MEC is the Second respondent in the case in which first and second petitioner are asking court to nullify May 21 polls citing mass regularities.

MCP on June asked disclosure of various cites including poll sheets which court granted by giving 11 days for MEC to comply before issuance of the non compliance certificate.

However on Thursday morning MEC Lawyers  applied to the court to set aside certificate of non compliance and asked for extension of time for disclosures.

“Order 2 rule 3 and Order 3 rule 5 and Under Inherent Jurisdiction of the Court let all  parties attend before the Constitutional Court in chambers on the hearing of an application by the 2nd Respondent for an order setting aside the certificate of non-compliance dated 11th July, 2019 for irregularity and for lack of merit and further for an order extending time for disclosures.

Take notice that the sworn statements of Tamando Chokotho and Deverson  Makwete shall be read in support of this application.

ANY sworn statement in opposition must be filed and served at least days before the above-mentioned return date.” Reads the application in part.

In a seperate interview, MEC Director of Legal Affairs David Matumika Banda on Friday said that it is not correct to say that MEC failed to comply.

“It is not correct that the Commission has failed to comply with the order. Some of the items listed in the order were owing to volume supposed to be accessed by the Petitioners at the Commission’s warehouses and they were duly invited. The petitioners chose not to make themselves available to have access to the materials.

“Even in cases where they made themselves available the Petitioners picked and chose what they wanted. Therefore, they can’t sincerely assert that there is non-compliance on the part of the Commission. Such a position can only be taken with the intention of misleading the Court.” Said Counsel Banda.

Chief Justice Andrew Nyirenda certified the case as a constitutional matter and assigned a five-judge panel comprising of Hon Healey Potani, Mike Tembo, Dingiswayo Madise, Ivy Kamanga and Redson Kapindu.

Below is the full version of the sworn statement:

IN THE HIGH COURT OF MALAWI LILONGWE DISTRICT REGISTRY

CONSTITUTIONAL REFERENCE  NUMBER 1 OF 2019

(Being Consolidated Election case Numbers 16 and 26 of 2019)

DR SAULOS KLAUS  CHILIMA , 1ST  PETITIONER
DR LAZARUS MCCARTHY CHAKWERA , 2ND PETITIONER

AND

PROFESSOR ARTHUR PETER MUTHARIKA       –                   1ST RESPONDENT
ELECTORAL COMMISSION                                      –                  2ND RESPONDENT

SWORN STATEMENT IN SUPPORT OF APPLICATION TO SET ASIDE  CERTIFICATE OF NON- COMPLAINCE

I, TAMANDO LAMA CHOKOTHO, of Messrs Churchill & Norris of Top Floor, Ridgeview Investments Building, Johnston Road Corner Masauko Chipembere Highway (Opposite NBS Bank) Ginnery Corner, P.O. Box 32293, Chichiri, Blantyre 3, Legal Practitioners for the above – named Defendant do hereby make oath and say:-

  1. I have the conduct of this matter on behalf of the 2nd Respondent and I have authority  to make this sworn statement.
  1. This sworn statement is made on the 12th day of July 2019.
  1. The matters of fact referred to in this sworn statement are from my knowledge and others are from my information and belief obtained through  my conduct of this matter.
  1. I have been served a certificate of non-compliance  dated 11th July 2019 at  around 4:53 pm.
  1. On Sunday 7th July 2019, Counsel David Matumika Banda sent an e-mail at 10:13 pm  inviting  the parties to the matter to  inspect documents and accept service  of copies of the same at the  electoral Commission premises.  I was  copied into the e-mail.  Exhibited hereto and  marked TC 1 is a copy of  the e-mail.
  1. In the meantime, all documents  that the Court ordered for  disclosure have been ready for  inspection and service at the  electoral Commission and  comprise of numerous lever arch  files for each party in excess of 40 lever arch files for each party to the matter.
  1. I did on 11th July 2019 at 13:09 call Modecai Msisha SC to enquire whether he could consider collecting the files and I explained the bulkiness of the material.
  1. Senior Counsel Msisha promised to consult with Counsel Mvalo and Counsel Likongwe and revert to me with their response.
  1. Senior Counsel Msisha did not call me back as promised and instead our Lilongwe office was served with the  certificate of non-compliance  at 4:53 pm.
  1. It may be noted that neither the Order for disclosures and  the nor the rules require  the party disclosing to effect  service  of the documents and as  such the call for the  petitioners to inspect and  accept service is not a  violation of the rules or the order of the Court.
  1. I have noted that the petitioners have referred to  some log books that are  in the warehouses in the  custody of parliament in the  Southern  Region.
  1. Inspection at the warehouses of Parliament took place on 3rd and 4th July 2019.
  1. On 4th July 2019, when it  became  apparent that  we  would not complete the  inspection, I did make an  application for the extension of time for inspection which  the Court denied.
  1. Furthermore, the Court unilaterally varies the Order on disclosures by  direction the Registrars present, Hon T. Masoamphambe and Hon Chirwa that  the Petitioners should select  which documents should be  disclosed.
  1. At  the inspection in  Blantyre, where I was  present,  this Hon Masoamphambe  did indicate that from  what he saw, there would  be need of about 30 days  to complete the exercise  of  inspection.  This was said in the presence of all Counsel representing the parties  to the matter except for  the Counsel for the 1st Petitioner who had left the premises  without taking leave.
  1. I am informed by Counsel Dr. Steve Kayuni that similarly, the exercise in Mzuzu was not completed  due to time.
  1. In the circumstances, disclosures of log books, counterfoils and voter  registers was compromised  as observed by Counsel Dr Chikosa Silungwe in a text message on the Constitutional  case management  whatsapp group at 9:13 am on 4th July 2019 when he wrote  a  midday writ off when the  petitioners are still in the  process of inspection breaches the Court Order and the  administrative arrangement agreed upon a Tuesday 2nd July 2019.
  1. On 8th July 2019, the Chief elections Officer  wrote a letter to the Court  disclosing the documents that log books that are available for inspection and  disclosures at the 2nd Respondents  premises.
  1. In the circumstances, failure  to make disclosures  that are  in the custody of the 2nd  Respondent is by the Petitioners  avail themselves for inspection documents  in the  warehouses  of parliament, there was  failure due to the amount  of time.
  1. On 5th and 6th  July 2019, the  Petitioners inspected and  received disclosures of all  matters relating to computers  at the 2nd Respondents  premises and that is why  the  petitioners have not raised  any issue relating to the  inspection of computers.
  1. I therefore humbly pray for an Order setting aside the  certificate of non-compliance  and extending time within which to make disclosures.

Sworn by the said

TAMANDO LAMA CHOKOTHO   at Blantyre.