Opposition Democratic Progressive Party (DPP) has filed an application at the High Court— Blantyre Registry—seeking nullification of the June 23 2020 court-ordered presidential election.
DPP legal counsel Charles Mhango confirmed the development in an interview yesterday, saying the party filed for the nullification of the election last week on the basis that, at the time the election was being held, there was no Malawi Electoral Commission (Mec).
If the DPP prayer is granted by the court, Malawi could see a reversal in presidential powers to the status quo that prevailed on June 22 2020, with DPP leader Peter Mutharika as president and Saulos Chilima as his vice.
The application by DPP comes barely a days after the High Court quashed the appointment of four DPP commissioners— Jean Mathanga, Linda Kunje, Steven Duwa and Arthur Nanthuru— on grounds that they were illegally appointed.
Some of the reliefs the DPP is seeking this time around include that the rescission of the appointment of two commissioners of the Seventh Cohort of the Electoral Commission rendered the Seventh Cohort inquorate – that is, unable to proceed effectively because of unavailability of enough members to make up a quorum— and unconstitutional under Section 75(1) of the Constitution of the Republic of Malawi.
The former governing party wants the court to rule that there was no Mec from the date of appointment of the Seventh Cohort of the Electoral Commission on or about June 7 2020.
The DPP also wants the court to rule that, under Section 75 of the Constitution of the Republic of Malawi, an inquorate and unconstitutional Electoral Commission does not have the constitutional powers or mandate to preside over and manage and or conduct any elections in Malawi.
The party is hoping, in submissions it filed on June 7 this year, that the court will make a “declaration that the election of the President and Vice President on 23 June 2020 and the purported swearing into office of President and Vice President of the Republic of Malawi are null and void ab initio”.
High Court Judge Kenyatta Nyirenda explicitly indicated, in his ruling, that the quashing of the appointment of the four DPP commissioners would not affect the validity of the June 23 presidential election.
But Mhango Wednesday said Nyirenda erred in his ruling as he touched on issues beyond his mandate.
“Our claim is not only based on the nullification of commissioners by the court two weeks ago. It is based on the decision that the President made on the two commissioners and, following that, the court quashed the appointment of all the four DPP commissioners. So, it is on two bases.
“What it means is that, from June 7 2020, we only had two commissioners and the effect of that is that Mec could not run an election. There was no Mec at that particular time,” Mhango said.
He observed that the Republican Constitution is very clear on the composition of Mec.
“Justice Nyirenda went beyond his boundaries to state things that he was not entitled to do,” Mhango added.
In his 45-page judgement, which he delivered on June 1, Nyirenda said former president Peter Mutharika erred by accepting five nominees from the DPP instead of the maximum three.