President Peter Mutharika has reacted to the Constitutional Court judgement which nullified the May 21 2019 presidential election results, saying he would appeal against the judgement but will not stop fresh elections.
In his national address, Mutharika said he would only appeal against the judgement because it has “serious flaws and inaugurates the death of Malawi’s democracy as such it cannot stand unchallenged.”
“Consequently, I have instructed my legal team to appeal against the judgement and challenge it. Let me, however, state that I will not attempt to appeal to stop the next election. In fact, we are ready to campaign and win as we have always done. We are appealing to correct the fundamental errors in the judgement,” he said.
Mutharika also applauded Malawi Congress Party president Lazarus Chakwera and his UTM counterpart Saulos Chilima for taking their electoral grievances to court as provided for in the laws which he said is a mark of democracy.
“However, I condemn violence in strongest terms,” he said.
Chakwera and Chilima have said they are not moved by Mutharika’s decision to appeal.
Chakwera, through MCP spokesperson Maurice Munthali, and Chilima, who were petitioners in the case, were reacting separately Wednesday to Mutharika’s decision to appeal the Constitutional Court’s call for fresh presidential election within 150 days from Monday.
“Everybody in Malawi has the Constitutional right to appeal if they feel aggrieved,” Munthali said.
“But we, as MCP, feel that the five ConCourt judges did not leave any room for one to appeal because the ruling relates to matters of the Constitution which guided them to adequately address any matter that was brought before them by petitioners as well as respondents.”
He added: “APM [Arthur Peter Mutharika] doesn’t have any satisfactory grounds to resort to such a step because he is not a direct offender in the verdict given by the ConCourt. Unless APM wants to tell Malawians that he connived with Mec [Malawi Electoral Commission] to mess up the 21 May 2019 elections, he cannot prove beyond reasonable doubt that he can be the rightful appellant.”
And briefing reporters in Lilongwe Wednesday, Vice- President, Chilima, who was the first petitioner in the election case, welcomed Mutharika’s decision to appeal.
“We all have rights. The Parliamentary and Presidential Act, section 100, is what we used to file an application to the court. We exercised our right to present our issues to the court.
“I did say last week that whichever way the outcome of court determination is going to fall then there is going to be a decision made. So, people have the right to appeal and also the right to waive their right to appeal. Our legal team stands ready to go and make our case,” Chilima said.
He said he was yet to get in touch with Mutharika and hope that the two will engage at any point.
“I hold no grudge. Look, if we profess what we profess as believers and people have wronged one another, we forgive each other and move on. You can’t get stuck in the past. I would be too worried about that. Time heals and it has got its own ways of resolving such issues,” he said.
Chakwera and Chilima made the remarks after State House Press Officer Mgeme Kalilani and Mutharika’s lawyer, Frank Mbeta, confirmed the plans to appeal the ruling.
“Yes, we will appeal. The grounds of appeal will be shared with you when they are ready. The appeal will be done within the time prescribed by law but as soon as possible,” Mbeta said.
But Kalilani hinted on some initial observations that could form the basis for appeal grounds, which include the fact that the court misdirected itself on how the law applies to the facts of the case.
But Constitutional law expert, Edge Kanyongolo, Wednesday said the impending appeal by Mutharika will not stop the process of preparing for a fresh election until another court rules otherwise.
“Until something happens, until some kind of order comes, the court order that was delivered by the High Court is the one which we are being guided by now,” Kanyongolo said.
“An appeal does not automatically stop or nullify the effect of the previous judgement.”
On Monday, the court said the announcement by Mec on May 27 2019 that declared Mutharika the winner of the presidential election could not be trusted as the will of the people of Malawi.
The court nullified the presidential election results on the basis that it was riddled by widespread, systematic and grave irregularities and ordered that a fresh election be held within 150 days.
Among other issues, the court, in its ruling, found that Mec violated Section 40 subsection (3), Section 76 subsection 2d and Section 77 subsection 5 of the Constitution.
“In view of the gravity of the said violations and breaches, it is our view that the conduct of the second respondent [Mec] in managing the said elections was very lacking and demonstrated incompetence for failing in multiple dimensions to follow clearly laid out legal processes for the conduct of such elections,” chairperson of the panel of five judges, Healey Potani, said when delivering the judgement.
The panel of judges also faulted the decision by Mec commissioners to delegate judicial powers to Chief Elections Officer, Sammy Alfandika, during and after elections when matters in question were appealable.
The court also said Mec announced contaminated results after approving results that were not audited and verified.
The court also advised the Public Appointments Committee (Pac) of Parliament to inquire into the capacity and competence of the current Mec commissioners to hold fresh election.