Lawyer Modercai Msiska a senior counsel (SC) leading the legal team of second petitioner and Malawi Congress Party (MCP) president Lazarus Chakwera, has asked the Constitutional Court to nullify President Peter Mutharika’s victory in the May 21 Tripartite Elections and declare Chakwera as the rightful winner of the polls.
Msisha, one of the framers of the Republican Constitution, in his final oral submissions on Friday, articulated the remedies he seeks the court to make to rectify the massive irregularities committed Malawi Electoral Commission (MEC), the second respondent in the matter, saying the body that it failed to adhere to constitutional provisions governing management of elections in the country.
The lawyer pointed out the jurisdiction to administer what Section 41 of the Constitution describes as “an effective remedy” to address MEC’s violations of the political rights of Malawian voters whose will was defeated by either incompetence or fraud, or both.
According to Msisha, though it is for the Constitution Court to decide what an effective remedy is, the five-judge panel of the High Court of Malawi sitting as the Constitutional Court should not only declare the election of Mutharika, invalid, null and void, but also consider declaring Chakwera the rightful winner of the 2019 elections if the Court is persuaded by evidence to that effect.
Msisha argued that there is “overwhelming evidence” that MEC has been generally negligent in its control and administration of the elections by failing to electronically and manually collate, tally and transmit results as accurately as required by law; failing to ensure that the relay of results from polling station was secure, accountable, accurate and verifiable.
He also said there has been massive tampering and irregularities in connection with the counting of ballots and transmission of results during the May elections of which MEC was aware or ought to have been aware of it had exercised reasonable care and due diligence commensurate with its constitutional and statutory powers and duties.
The lawyer argued that despite the existence of the said tampering and irregularities, MEC went ahead to announce the results of the election, including that the President Mutharika had been re-elected “without holding any or any sufficient audit or recount to verify the election results.”
Msisha said failure by MEC to remedy the non compliance, irregularities and improprieties in the conduct of May elections amounts to “grave violation of the Constitution”.
He pointed out that the elections was badly conducted and fatally affected by non-0 compliance, irregularities, malpractices and illegalities such that the result of the elections had been substantially and significantly affected.
Msisha said Mutharika was not duly elected President of Malawi as he did not truly obtain a majority of the votes polled.
President Mutharika of Democratic Progressive Party (DPP), by virtue of being the declared winner of the presidential race, is the first respondent.
The five High Court judges hearing the case are Healey Potani, Ivy Kamanga, Dingiswayo Madise, Redson Kapindu and Mike Tembo.
Nyasa Times