‘Chakwera has ceased to be President of  Malawi’: DPP calls on court to nullify fresh election, revert to APM-SKC presidency

The erstwhile ruling Democratic Progressive Party (DPP) has gone to court and is callingfor the nullification of the 23 June 2020 Presidential Elections, and all subsequent Parliamentary, and Local Government By- Elections following the rescinding of the appointment of two commissioners Linda Kunje and Jean Mathanga by the Office of the President  and Cabinet (OPC).

DPP which nominated the two fired commissioners is seeking a judicial review on Secretary to the President and Cabinet Zanga- Zanga Chikhosi’s decision which the party has described as “abuse of Executive powers”.

Spokesperson of DPP, Brown Mpinganjira, said the party  has noted the decision of President Lazarus Chakwera rescinding the appointment of Kunje and Mathanga  and that the consequence of the rescission is that ‘The appointments were void ab initio [to be treated as invalid from the outset]”

Reads the statement in part: “Commissioners Kunje and Mathanga were soon after their appointment duly sworn in and they participated in the conduct and organization of the 23rd June, 2020 Court ordered Presidential General Elections as Members of the Electoral Commission.”

In the letter communicating the decision to rescind, the Secretary to the President and Cabinet, Zanga Zanga Chikhosi stated that the rescission is on the basis that the two were adjudged incompetent by the Malawi Supreme Court of Appeal in its decision delivered on 8th May 2019, regarding the manner in which they handled the 2019 Tripartite General Elections.

However, DPP  argues: “We hasten to point out that Commissioners Kunje and Mathanga were properly re-appointed by the former President in exercise of the powers conferred on a President by the Constitution of the Republic of Malawi. Malawians will recall that soon after the appointment of the new Electoral Commission in June 2019, the Malawi Congress Party, which was and still is headed by Dr Lazarus Chakwera, sought to challenge the re-appointment of Commissioners Kunje and Mathanga in Civil Cause number……..of 2019.

“That lawsuit was subsequently withdrawn and Commissioners Kunje and Mathanga participated in the electoral process that returned Dr Lazarus Chakwera as duly elected President of the Republic of Malawi.

“Under our laws, the Electoral Commission is the only body which is constitutionally mandated to organize, arrange and conduct elections in this country. To do so in compliance with the law, it has to be properly and legally constituted.”

DPP has also cited Section 75 (1) of the Constitution states that “there shall be an Electoral Commission which shall consist of a chairman who shall be a judge nominated in that behalf by the Judicial Service Commission and such other members, not being less than six, as may be appointed in accordance with an Act of Parliament”.

“Therefore, for any election to have been duly conducted, the legality of the composition of the Electoral Commission as well as the manner of its appointment are necessary pre-requisites.

“Consequently, since the rescission of the appointment of Commissioners Kunje and Mathanga is operative as from the date of their appointment, namely, the 7th June 2020, it is clear that as from that date up to now, we have not had a duly constituted Electoral Commission as required by Section 75 of the Constitution which would have been capable of organizing and conducting any elections in Malawi.

“For avoidance of doubt, the effect of the rescission of the appointment is to undo, unmake, abrogate, annul and cancel the said appointments as from the date of their appointment and not just termination of employment of the two as Commissioners. Therefore, rescinding the said appointment immediately invalidates any and all decisions made by the Electoral Commission as from the 7th June 202,” reads DPP statement.

Mpinganjira said dpp will therefore be calling on the Courts to invalidate the following decisions by the Electoral Commission immediately:

1. Nullification of the 23rd June 2020 Presidential Elections on grounds of undue election because the electoral body was not duly constituted according to law.
2. Nullification of all the bye-elections conducted thereafter.

Further, DPP  calls upon Chakwera to leave the Office of President immediately.

“He has ceased to be a legitimately elected President of the Republic of Malawi because the election that elected him into office was presided over by an unconstitutional body,” said Mpinganjira.

DPP calls on the Courts, when moved, to nullify the election of Chakwera and his Vice President, Saulos Chilima and revert to the position as it was before the 23rd June 2020 where Peter Muhtarika was president and Chilima as vice president.

“Our decision to pursue this course is underpinned by the Constitution which is the Supreme law of the land,” said Mpinganjira.

Law professor Garton  Kamchedzera of Chancellor College—a constituent college of the University of Malawi,  said President Chakwera should refer the matter to the court as a presidential referral for the Chief Justice to appoint a minimum of three judges to authoritatively decide on the issue as a Constitutional Court.

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