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Court throws out DPP case

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Thabo Nyirenda

A five-member panel of judges slams DPP election case as an appeal in disguise, throwing it out outright – an end which Attorney General said he expected

The Democratic Progressive Party (DPP) yesterday found itself on the receiving end of a court ruling that shredded any hopes it might have nursed of reclaiming power, not via the ballot, but the courts.

Following a court ruling in June this year which quashed the appointment of DPP commissioners for the Malawi Electoral Commission, the party filed an application which essentially questioned the validity of the elections which these commissioners had presided over, including the June 2020 presidential election in which President Lazarus Chakwera emerged winner.

Friday the High Court in Blantyre, sitting as a Constitutional Court, dismissed with costs the case in which DPP wanted the court-sanctioned 2020 fresh presidential election and the 2019 parliamentary as well as local government by-elections managed by the seventh cohort of Mec nullified.

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In June the court had ruled that four MEC’s commissioners — Steven Duwa, Jean Mathanga, Linda Kunja and Arthur Nanthulu — were not duly elected. They were later fired by President Chakwera.

Attorney General Thabo Nyirenda wanted the case dismissed before the hearing of the main case because, among others, the application by the DPP was not supposed to come before the High Court sitting as a Constitutional Court.

The judgment which was delivered for about six hours struck out DPP’s case in its entirety.

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Delivering the ruling, Judge president Sylvester Kalembera said the court dealt with preliminary issues and objections raised by DPP and the Attorney General.

The judges ruled that DPP cannot benefit from its own unlawful and illegal act.

“The Court in Malawi Congress Party v The President of the Republic of Malawi specifically held that the conduct of the claimant in nominating more than three names and the appointment of more than three Commissioners representing the claimant to the Sixth Cohort of the Commission were illegal.

“The finding is that the principle relief sought by the claimant, namely, nullification of the results of the FPE 2020 and the subsequent Parliamentary and Local Government By-elections, if granted, would have the effect of benefitting the claimant from its own illegality, in that the status quo would revert to the pre-FPE 2020 political set up. The preliminary objection is upheld,” reads part of the judgment.

Among others, the issues included whether the Attorney General must take oath of office in order to have standing in court, whether the High Court has jurisdiction to overturn or review its own decision, whether a High Court judgment can constitute a cause of action and whether the present proceeding was aimed at reviewing or appealing against a decision of the High Court on similar issues.

As to whether the Attorney General must take an oath of office in order to have standing in court, the court found that the framers of the constitution did not intend for the Attorney General to take an oath of office.

“The court finds that the attorney General was properly before the Court. Consequently, the court dismissed the preliminary objection,” read part of the judgment.

Kalembera said the action was struck out in entirety, describing the proceedings as an appeal in disguise and that the proceeding being res judicata [a matter that has been adjudicated by a competent court and therefore may not be pursued further by the same parties].

“The judgment relied upon not constituting a cause of action, a non-existent party being sued, the claimant’s failure to comply with the notice requirement under the section 4 of the Civil Procedure (Suits by or against the government or public officers) Act, the claimant being precluded from benefiting from its own illegality and the proceedings being frivolous, vexatious and an abuse of the court process,” read part of the judgment.

Commenting on the judgment, the AG said he was happy that the courts have vindicated him.

“There is no better reaction than to say this is what we expected and we are happy. From the word go, we knew this was a hopeless case and the verdict that has come out has just vindicated what we said,” he said.

Without coming out clear as to whether they will appeal the matter or not, one of DPP’s lawyer Charles Mhango said they have to consult their client and go through the judgment thoroughly.

“The court has not agreed with us; it has agreed with the Attorney General. The case has been dismissed so we need to go through the issues and consult the clients who should advise us on the way forward; so I cannot tell the public as to what we will do. At this stage we have not read what the court has said.

“Upon reading the issues which the court has raised we shall be able to determine whether we can appeal or not,” he said.

The other judges who presided over the case are Annabel Mtalimanja, Rowland Mbundula, Dorothy Kamanga and Thomson Ligowe.

In June last year, Malawi conducted fresh presidential election following the nullification of the May 2019 election, in which then president Peter Mutharika was declared the winner.

However, opposition leaders that time, Lazarus Chakwera and Saulos Chilima, filed a court challenge against the election of Mutharika and the court ruled in their favour, which led to the election on June 23 which Mutharika lost.

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