Mutharika lawyers insert 3 new grounds in amended appeal to Malawi Supreme Court

President Peter Mutharika on Friday filed an amended appeal notice to Malawi Supreme Court against a landmark Constitution Court (ConCourt) decision that overturned his 2019 election victory, lodging 17 ground of appeal, one short of the previous notice, documents showed.

Malawi made history on February 3 2020 when the five-judge panel of the High Court of Malawi sitting as the Constitutional Court ruled in favour of an opposition bid to cancel last May’s presidential election results over for widespread irregularities.

The President’s lawyers, Frank Mbeta confirmed that in his amended appeal papers, Mutharika maintains the judges had “erred in law” in concluding that his re-election was “undue” and he asked the Supreme Court to reverse the judgment which also ordered new elections.

The judges had declared Mutharika was “not duly elected” over what it called widespread irregularities, especially “massive” use of correction fluid on results sheets.

But Mutharika has replaced four grounds from the previous notice of appeal filed on February 7 2020, replacing them with three new grounds.

“The learned judges erred in law and in fact by failing to take into account in their findings the responses given by witnesses for the petitioners/respondents during cross-examination by the 1st appellant [Mutharika] on all the issues pleaded and identified in the petitions, and thereby showed gross bias in favour of the petitioners/respondents and against the first appellant,” reads ground 15 of appeal.

The appeal cites case authorities of Loveness Gondwe versus Malawi Electoral Commission (MEC) and Catherine Gotani Nyahara, of 2005, Bently Namasasu versus Ulemu Msungama and MEC of 2016 among others cases of example.

Reads ground 16: “The learned judges, having misdirected themselves on the issues set out in the ground 1-16 above, erred in law and in fact in holding that the 2nd Appellant breached Sections 40(3); 76(2) (d) and 77(5) of the Constitution of the Republic of Malawi, thereby making an unjustifiable order annulling results of the presidential election of May, 2019.”

Two of the presidential candidates in the May 21 2019 Tripartite Elections—UTM Party’s Saulos Chilima (the first petitioner) and Malawi Congress Party (MCP) candidate Lazarus Chakwera (the second petitioner)—asked the court to nullify presidential election results over alleged irregularities, especially in the results management system.

In his public reaction, Mutharika—a lawyer with expertise in international economic law, international law and comparative constitutional law—said alongside his legal team he has “serious reservations with the judgement” nullifying the elections.

Said the President: “We consider the judgement as a serious subversion of justice, an attack on our democratic systems and an attempt to undermine the will of the people.

“As it stands, the judgement, if not cured, represents a flawed precedence for all future elections in the country. In fact, this judgement inaugurates the death of Malawi’s democracy. As such, it cannot stand unchallenged.”

The five-judge panel comprising Healey Potani, Redson Kapindu, Ivy Kamanga, Mike Tembo and Dingiswayo Madise nullified the presidential election in the May 21 2019 Tripartite Elections and directed that a fresh election be held within 150 days from February 3 2020.

The court said Malawi Electoral Commission (MEC) failed in all constitutional tests it set out on the elections and that the irregularities were so glaring that the credibility of the election was in question.

Mutharika was declared the winner of the May 21 election with 38.5 percent of the vote, with Chakwera losing by just 159,000 votes.

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