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

Malawians voted twice in presidential election following the nullification of 2019 election by Constitutional Court, a judgment which was upheld by the Supreme Court of Appeal, citing widespread irregularities. Fast forward, the opposition Democratic Progressive Party is in court challenging the victory of the incumbent president on grounds that Malawi Electoral Commission was not legally constituted when Lazarus Chakwera was declared a winner. This is according to Judge Kenyata Nyirenda verdict on commissioners Linda Kunje and Jean Mathanga.

Should we expect another fresh election? Legal commentator Rick Dzida weighs in. Enjoy the piece…

Malawi went to the polls on 23 June 2020 following the nullification of the 2019 presidential elections. The justification for annulling the presidential elections was purely the presence of mere irregularities which are usually present in all elections including parliamentary elections.

It was surprising that the court went ahead to nullify the presidential elections despite the fact that there was no evidence that the irregularities affected the votes of any presidential candidate. This was an evidence of judicial coup. Next was the misinterpretation of the word ‘majority’.

The Constitutional court simply pulled the meaning of the word ‘majority’ from a black law dictionary without considering our constitution. This was an argumentum ad dictionarium fallacy which prompts the arguer to substitute their reasoning power with a mere dictionary.

It is clear that Malawi Constitution does not provide room for run-off elections, another crystal clear indication that our constitution recognises the first-past-the-post strategy as a means to determine the winner. Furthermore, the Supreme Court of Appeal led by Justice Richard Banda had already ruled that the word ‘majority’ meant first-past-the-post paradigm.

The Constitutional Court, sitting at the lower level of high court, acted ultra vires by overriding the decisions of the highest court, the Supreme Court of appeal. All this happened under the mantle of Chief Justice Andrew Nyirenda who has the mandate now to certify any case as being constitutional in nature.

As if this was not enough, the Constitutional Court went further to bulldoze the 50+1 majority case law to be incorporated into our constitution. The National Assembly was directed to change the Constitution to accomodate the 50+1 majority case law. This breached the independence of three arms of government contrary to Malawi Constitution.

The duty of the Constitutional Court is to interpret the Constitution holistically so that some conflicting laws and misinterpretations are harmonised. The Constitutional Court has no mandate to legislate, a duty that falls under the ambit of the National Assembly which had already rejected the 50+1 majority paradigm. All this was happening again under the watch of Chief Justice Andrew Nyirenda who has the mandate to certify any case to be constitutional matter.

It is mind boggling as to why the Constitutional Court deliberately chose to bulldoze the 50+1 majority case law. The notion of 50+1 majority formed the theoretical basis for the judicial coup. Here was the jigsaw puzzle. Analysing the results of 2019 presidential elections, it was evident that the sum of the votes from Dr. Lazarus MacCarthy Chakwera and from Dr. Saulos Klaus Chilima was much greater than the total of the votes from other presidential candidates. The 50 +1 majority rule would force the parties to form electoral alliances. With this case at hand, it was highly likely that Dr. Lazarus MacCarthy Chakwera and Dr. Saulos Klaus Chilima would form an electoral alliance since they both had a common political agenda; that is to dismantle the DPP regime.

Voila!!! Results of the 2020 fresh presidential elections statistically followed the same pattern as those of 2019 presidential elections. This is an indication that there was no rigging in 2019 presidential elections.

Fast forward to the DPP vs Attorney General case which the CJ is yet to certify. The argument advanced by DPP in this case is very sound. The Malawi Constitution is supreme and any law that is in conflict with the Constitution becomes invalid.

The Constitution clearly states that there shall be a minimum of six members for the Malawi Electoral Commission,(MEC). The ruling by Judge Kenyatta Nyirenda that four DPP commissioners were unprocedurally appointed meant that the composition of MEC was unconstitutional.

During the time of fresh presidential elections, MEC was not legally constituted. Its membership was less than 6 legally, contrary to Malawi Constitution It is a clear fact that an unconstitutional MEC cannot make legally binding decisions. It follows that MEC’s decision to declare Dr. Lazarus MacCarthy Chakwera a winner may not be legally binding.

DPP has a good ground to challenge the results of the 2020 fresh presidential elections which were managed by an illegal and unconstitutional MEC. A million dollar question arises, should we expect fresh presidential elections considering that DPP has a strong case? Only the court has a final determination on this case. The CJ has two options, to approve or to disapprove the certification of the case. The CJ will assess critically if the case is worth any certification at all. The safest avenue is for CJ to reject the certification of the case if the alleged judicial coup is to be upheld. The major fear is that if the case proceeds to the Constitutional Court, it is highly probable that DPP will have a good case to argue.

Another way is for CJ to certify the case but identify judges that will most likely rule in favour of the current regime, if the concept of the alleged judicial coup is to go by. The bottom line is that it is highly unlikely that the court that is alleged to have staged a judicial coup should shoot itself in the belly by nullifying the 2020 fresh presidential candidate in favour of DPP

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