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Court maintains judicial review on elections

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By Macdonald Thom:

The High Court in Lilongwe has said it maintains the permission for judicial review it granted Malawi Congress Party (MCP) on issues relating to presidential election which took place last week.

This is despite the same court’s decision to vacate an injunction which restrained Malawi Electoral Commission (Mec) from announcing results of the elections.

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In a nine-page ruling, Judge Charles Mkandawire said although he was satisfied with arguments for the discharge of the stay, he maintained the judicial review process.

“On the stay order that this court had granted, it should be noted that after hearing arguments from both sides, the court has appreciated and is satisfied that the said stay order should be discharged,” the ruling, delivered Monday, reads.

Following the injunction, Mec, through lawyer Andy Kaonga, filed an application to have the order for permission for judicial review and stay discharged.

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“The court is very much aware that the respondent is mandated by Section 99 of the Parliamentary and Presidential Act to finalise its processes within the timeframe prescribed therein.

“I, therefore, order that the respondent is at liberty to proceed with the process, so that it complies with the said Act. The permission for judicial review still stands. I order that each party should meet its own costs,” the ruling adds.

The discharge of the injunction paved the way for Mec to announce results of the presidential election.

According to the results which Mec Chairperson, Jane Ansah, announced at Comesa Hall in Blantyre, President Peter Mutharika won the elections.

On the judicial review, MCP wants the court to review the decision by Mec to consider results of presidential elections from areas which, it says, were marred by tampering of tally sheets.

MCP also wants the court to review the electoral body’s decision, through its presiding officers who refused to give copies of genuine tally sheets to the party’s accredited monitors.

Other issues which MCP wants the court to review are that Mec should tabulate results of presidential elections without prior verification with the party’s accredited monitors and the electoral body’s decision to take into account results from constituencies and polling centres where the votes cast are higher than the number of registered voters in the constituency or polling centre.

MCP also wants the court to review Mec’s failure to reverse results after seeing evidence of rigging and the commission’s failure to accord rules of natural justice to the applicants and their agents.

In the ruling, Mkandawire also said the court has jurisdiction on the issue.

“I am satisfied that this matter was properly brought before this court and that the court had jurisdiction to entertain it. I do not agree that the applicants had suppressed information that they had already complained to the Electoral Commission. It is very clear that counsel [Titus] Mvalo had attached a letter of complaint. If the applicants had wanted to suppress the information, they could not have disclosed that letter,” the judgement reads.

On Saturday, the High Court granted MCP permission to apply for judicial review on the issue of elections, and also granted it an injunction restraining Mec from announcing results of the presidential election until results from Nsanje, Chikwawa, Mangochi, Blantyre, Zomba, Mulanje, Chitipa, Rumphi, Karonga and Nkhata Bay are verified through a transparent recounting of the ballot papers.

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