High Court Judge Kenyata Nyirenda

Pusch Commey is a Pan African legal analyst and journalist who practises as an advocate of the High Court of South Africa.

Opinion: There is that popular English phrase “the law is an ass”. Ordinary people sometimes quote it flippantly, but in the last few weeks, it became as real as the rising sun. On the June 2 this year the High Court of Malawi presided over by Justice Mkandawire Nyirenda invalidated the appointment of four commissioners of the Electoral Commission, and affirmed the appointment of two.

Section 75 of the constitution mandates that a commission have no fewer than six commissioners and a chairman, a judge nominated by the Judicial Services Commission. The invalidation created a storm as the commission had no quorum to operate.

The problem is the obviously partisan application of the law and the conundrum it creates. The four commissioners whose appointments were rescinded belonged to the Democratic Progressive Party (DPP) of ex-president Peter Mutharika, who was adjudged by the same commission to have lost a re-run (on June 23, 2020) of a court-nullified election he won in 2019. This, in the view of many, was a judicial coup-d’etat.

The 2019 election was deemed free and fair by impartial international observers, including the SADC, the EU,and the US Government. It was challenged by current President Lazarus Chakwera and his party, the Malawi Congress Party (MCP). The outcome was a High Court (five judges sitting as a constitutional court), and a subsequent Supreme Court decision to annul the elections.

In the run-up to the re-run, a spate of legal challenges included the contestation (review application) by the MCP of the appointment of the four electoral commissioners nominated by the DPP and appointed by Mutharika. The basis was that the Electoral Act entitled the DPP to only three appointments, while the MCP was entitled to three, not two appointments.

The review application was stillborn. It was not pursued to a conclusion by the MCP. The six appointed commissioners and the chairperson thus dutifully executed their mandate, which saw the victory of Lazarus Chakwera, after the courts had changed the electoral rules of engagement.

While all previous elections since 1994 had been decided by whichever party gets the most votes in the first instance, now the courts, outside of adjudicating the freeness and the fairness of the 2019 election, ruled that the victor of the re-run should have more than 50% of the votes cast to secure a win.

ConCourt Judges
justices Healey Potani, Mike Tembo, Dingiswayo Madise, Ivy Kamanga and Redson Kapindu

While in the 2019 election, nine opposition parties had run on their own merit, the courts now allowed them to reshuffle the deck and form a coalition called the Tonse Alliance under one umbrella. It needed no rocket scientist to add up the numbers and figure out that this reshuffle would ensure the defeat of the then incumbent president Mutharika, who had previously won with 38% of the vote.

There was something patently unjust about manipulating judicial power to ensure the victory of a losing opposition, which had ganged up against Mutharika. This does not happen in a real democracy.

Absurdity of supreme court ruling, Players can stay the same but change teams at half time

Fast forward to June this year. The same referees (six commissioners and the chairman ) declare the MCP and its new Tonse Alliance coalition victors of the June 23 2020 re-run with 59% of the vote. There is a new President, Lazarus Chakwera. The 2020 review application is revisited by a new attorney-general in his service.

The High Court presided over by hostile single Judge Mkandawire Nyirenda ruled that four commissioners of the DPP were not duly appointed since the party was entitled to nominate three. However, the two commissioners of the MCP were adjudged to have been duly appointed.

What this meant was that the electoral commission in retrospect did not have the quorum and mandate to lawfully run the June 23, 2020, elections. And certainly, no right to declare Lazarus Chakwera as President, including all the parliamentarians and officers who won seats.

It’s like a judge who, having presided over cases and delivered judgements, is later found to have faked his degree to get appointed or one who was unlawfully appointed. He is unqualified or unlawful, and therefore his subsequent judgments while sitting on the bench have to be reviewed and set aside. His cases will have to start de-novo (anew). They are the fruits of a poisoned tree.

It is astonishing that Judge Mkandawire Nyirenda then decided to validate the 2020 decisions of these unqualified or unlawful commissioners, which is the declaration of the current president, parliamentarians and other officials as validly and lawfully elected.

The law and the logic are hard to fathom. An “unduly elected” former president Mutharika (according to the courts) wrongfully appoints four commissioners from his party out of six to re-run an election. The commissioners declare that he lost the re-run, and usher in an opposition President Chakwera. This president’s party then revives a review application that says those four commissioners who were necessary to form a quorum were not properly appointed in the first place. However, that should not affect their decision to declare Chakwera as President. The court agrees.

Judge Nyirenda engages in what is popularly known in legal circles as judicial somersaulting to justify the legally suspect and illogical decision. He takes comfort in the fact that Mutharika was allowed to exercise presidential powers for a year until the re-run, which in essence was necessary to avoid a power vacuum.

But that argument is fatally flawed. He was not unqualified to be president. Second, elections are not appointments. Third, he was confirmed by the electoral commission to have won the first election. Fourth, the court-contested decisions he made while president, were set aside and reversed. There were a number of them, practically all of which went against him; including his decision to declare a lockdown at the height of the Covid crises.

More disconcerting was that instead of invalidating the appointment of all the six commissioners, the two commissioners belonging to the MCP, the current ruling party (then in opposition) were declared to have been properly appointed by Mutharika. The DPP (now in opposition) was asked to re-submit three new names, whose appointments have been confirmed by current President Chakwera. The previous commissioners are now out of a job. It is egregious, the height of judicial impunity and chutzpah.

The DPP has sued in court for a declaration that, as a result of the poisoned tree, the poisonous fruit cannot be ingested. A crab cannot give birth to a bird. In effect the declaration of the current president, parliamentarians and officials as duly elected in the 2020 elections by the very same commissioners, should be set aside. A fresh election should be ordered.

DPP Application Sound Legal Arguement

It is a sound legal argument, it is rational, and makes a lot of common sense. After all, the basis of law is common sense. But judging by the history of court antagonism towards the DPP and Peter Mutharika, one should rather pray for miracles. After all, the judicial bag of tricks is bottomless.

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