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Supreme Court hears election case appeal

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The Supreme Court of Appeal yesterday heard arguments in the presidential election appeal case that President Peter Mutharika and Malawi Electoral Commission (Mec) brought against the enforcement of February 3, 2020 Constitutional Court judgement.

Chief Justice Andrew Nyirenda, Judges Anthony Kamanga, Rezine Mzikamanda, Frank Kapanda, Edward Twea, Lovemore Chikopa and Anaclet Chipeta heard the appeal case while wearing masks as set out measures to prevent the Covid-19 outbreak.

Opening the floor Samuel Tembenu lawyer for first appellant Mutharika said the Constitutional Court failed to subject the evidence of irregularities to quantitative approach to show how the valid votes of the election were affected. He faulted the lower court for failing to stick to the petition and did not give them opportunity to respond to new issues accusing the court of throwing the dispute in the arena.

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“Issues that were raised before the court were both in petition and others in affidavit. The court was bound by those issues. If another issue is introduced, the party that is being complained against is entitled to be given an opportunity to respond,” he said.

He also said the determination to use the 50 percent +1 electoral system as ordered by the court did not arise in the petitions and the court erred by adopting the dictionary meaning of what majority means and dragging the matter into the case. Mec lawyer Tamando Chokhotho said on delegation of duties, the commissioners cannot be expected to be at every corner of the country hence it could delegate some of its duties.

He said the burden of proof lied on the petitioners in the lower court as there was sufficient audit trail to prove the irregularity or anomaly that they alleged. “There were several levels of audit trail in the election from forms 60 in the logbook to those.

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Copies of all these were furnished to the parties. Additionally, in reference to order of discovery, among the documents that petitioners sought disclosure of were used and unused ballots, voter register, together with other electoral materials.

But Chikosa Silungwe, lawyer for Saulos Chilima argued that there was no competent appeal as it lacked merit. “Irregularity simply means noncompliance with the [Presidential and Parliamentary Elections] Act, therefore the High Court found a catalogue of violations of the Act. We also said it is important that an election is credible and [handled with] integrity,” he said.

Silungwe further suggested to the court to make consequential orders for Mutharika to dismiss commissioners on the account of incompetence, and that commissioners should individually bear the cost of the case. MCP leader Lazarus Chakwera’s lawyer Modecai Msisha said Mec can delegate administrative issues but not the core functions of the commission. He went ahead and said the burden of proof lies on the commission to account its constitutional duty to manage the elections.

“The impact of various irregularities was documented. Once you have ballots affected and your own audit says 40 percent of what we looked at has serious difficulties, it becomes your duty to enquire on the irregularities other than come to court and behave like a party,” he said

Chief justice Nyirenda adjourned the matter to a letter date to be announced.

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