AG Thabo Chakaka Nyirenda wants the case be dismissed

By Chilimunthaka

BLANTYRE-(MaraviPost)-The High Court sitting as Constitutional Court in Blantyre has on Thursday September 30, 2021 finished hearing the case in which Democratic Progressive Party (DPP) is seeking interpretation of Section 75 in the Constitution of Malawi.

Responding to DPP lawyers, the country’s Attorney General, Thabo Chakaka Nyirenda told the Court that the claimant participated in the irregular appointment of Electoral Commissioners and that the former President was complicit to the violation as it was clearly demonstrated in the judgement by Justice Kenyatta Nyirenda in paragraph 95 on page 36 of his ruling in which Justice Kenyatta emphasized on how the commission can have valid commissioners, while faulting the then commissioners as not being duly appointed.

Chakaka Nyirenda then focused on Section 9 of the country’s Constitution which gives powers to the court to protect and enforce the Constitution and all laws. (Ref: Muluzi vs ACB Director)

Again, Nyirenda told the Court that Section 4 of Civil Procedure Act was violated and that Court’s judgements are part of the laws, hence Justice Kenyatta Nyirenda’s judgement is currently part of the country’s laws which were violated by the claimant. He added that the claimant had been acting consistently, inconsistent to the law which prompted the Court to refer to it as amounting to impunity to violate the law.

The AG continued to quash the arguments made by the DPP lawyers who referred to the case as not being an electoral matter but rather Constitutional matter, saying the lawyers used a mere definition which doesn’t holds to the case at hand.

But he was so quick to say that the lawyers wanted to scapegoat their failure to comply with the procedural requirements on account of treating the case as constitutional matter by conveniently ignoring the definition under order 1 rule 4 of CPR-2017 .

Further, Chakaka consistently kept telling the Court that the case is an electoral matter but brought to the Court of law as a Constitutional matter, saying the claimant’s pleadings want the nullification of the Presidential, Parliamentary and Local government elections.

Nyirenda who throughout his narration was so composed told the Court that the claimant’s argument against the ruling of Justice Kenyatta Nyirenda is not enough to file a case before Court, saying the pleadings by the claimant should have established harm, injury or any loss sustained.

He continued by saying that under the constitutional arrangement, only the President is eligible to seek advisory opinion by the Court, unless it is provided for under Section 89(1)(h) of Malawi’s Constitution.
Ref: Attorney General vs Malewezi and infamous Section 65(Crossing the floor)

Turning to why the Chief Justice certified the case as constitutional, the AG told the Court that under the current legal rules, the CJ has no choice other than to certify the case.

Chakaka also told the Court that the document before Court by the claimant marked FM5 which was issued by the AG on April 13, 2021 advising the Commission that effect of rescission of the appointment of the two commissioners was that the membership of the Commission was no longer in compliance with Section 75(1) of the Constitution was talking about the future from the day the rescission was made and not dwelling on the past before it(The decision wasn’t retrospective).

During his response, the proceedings nearly turn into a drama when the AG revealed that one of DPP lawyers (Tembenu) misled the Court during his argument on September 29 when he cited Section 15(1) of the Constitution, referring the case of Wilser Malawi vs AG. as the AG said he was part of the case representing the AG and that the Court dismissed the case despite it being certified as constitutional, contrary to what

Tembenu who represented Wilser told the Court that the case proceeded to substantive hearing. This did not please counsel Tembenu who rose for an objection to stop AG from referring to the case but the AG stood his guns that he was not arguing off tangent. He then pleaded with the Court saying it is now high time to make it criminal once a counsel mislead the Court in important matters.

On the three months notice, in which the claimant cited Order 19 of CPR-2017, the AG noted that the claimant was contradicting theirself, saying the Court ruled that the notice remains mandatory compliance requirement.
Muluzi vs ACB Director)

Here the AG told the Court hat the claimant can not rely on order 19 of CPR, arguing that wherever there are subsidiary legislation and an Act of Parliament, the Act of Parliament prevails, saying Section 4 of CPA is an Act of Parliament.

On the argument that Dr. Chakwera is not part to the case, AG consistently told the Court that Dr. Chakwera participated in the election as MCP leader but as an office, being MCP leader is totally different from the State President, saying the DPP lawyers erred in referring Dr. Chakwera in person and not being in the office of the State President.

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