MEC argues against ‘undue return’ determination in appeal against Malawi fresh election

Private practice lawyer Tamando Chokhotho representing the Malawi Electoral Commission (MEC) on Wednesday submitted his arguments before Malawi Supreme Court of Appeal hearing the appeal case which President Peter Mutharika and MEC filed against the Constitutional Court (ConCourt) judgement ordering vote re-run, saying the determination on undue return was a material error in law.

The ConCourt panel, comprising Healey Potani, Redson Kapindu, Ivy Kamanga, Mike Tembo and Dingiswayo Madise, in their February 3 2020 said 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.

The five-judges said they were satisfied that the petitioners’ complaint alleging undue return has been made out “both qualitatively and quantitatively.”

They ruled that Mutharika was not duly elected as President of Malawi and further ordered that a fresh election be held in accordance with the recommendation that   Parliament should review the country’s election management laws, particularly the 50-plus-one provision in choosing the President, to clarify on laws governing the declaration of a winner through a majority vote.

But in his one hour submission at the Supreme Court, Chokhotho one of the prolific lawyers in the land, has argued that the ConCourt had overstepped its powers by ordering parliament to amend electoral laws ahead of a new vote.

Chokhotho argued that 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)—failed to prove beyond doubt that figures in Results Management System were tampered with.

The petitioners alleged irregularities, especially in the results management system.

But Chokhotho raised a concern that MEC’s director of ICT services Hensley Munkhondiya was not allowed to be re-examined at ConCourt on exhibits which formed part of the electoral body’s evidence.

In answering the question which Justice Edward Twea asked on delegation of commissioners’ powers, Chokotho said: “Powers of the Commission cannot be delegated. We have argued that this is the provision of law which has never happened.

“Then it must not have been subjected to a challenge.”

He said Chief elections officer Sam Alfandika was critically cross-examined on this matter during the elections case hearing.

The fresh election has been set for July 2, although it could be delayed by the appeal and the coronavirus outbreak as the country has announced a three-week lockdown.

The Supreme Court judge panel led by Chief Justice Andrew Nyirenda includes other judges; Justice Edward Twea, Justice Anaclet Chipeta, Justice Anthony Kamanga, Justice Lovemore Chikopa, Justice Frank Kapanda and Justice Renzine Mzikamanda.

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