Following the court ruling that fresh presidential election should be had after nullifying the 2019 presidential election, the then president, Peter Mutharika, ignored and violated the prescription of the Electoral Commission Act by appointing four candidates from his then ruling party (the DPP) and two candidates from the then opposition party (the MCP).
Section 3 of the Electoral Commission (Amendment) Act, 2017, provides that “leaders of political parties represented in the National Assembly, which secured more than one tenth of the national vote in election to parliament, shall submit to the President a maximum of three persons as political parties nominees as members of the Commission from where the President shall appoint members of the Commission from the nominees in proportion to the nominating political parties representation in the National Assembly as determined by the previous General Elections”.
The DPP violated this law by nominating four instead of three names for appointment. President Mutharika violated this law by appointing four names from DPP and two names from MCP instead of three names from each.
In its quest to secure remedy to the mischief, the MCP, through its secretary general Eisenhower Mkaka, made an application to the court challenging the legality and continued stay of the unlawfully appointed commissioners.
The court found for the MCP and nullified the irregular appointment of the four commissioners. The development impressed DPP that the election which the nullified commissioners helped in presiding is challengeable. They argue that the development means that there was no electoral commissioner that would legally preside over the election.
But in his ruling which nullified the appointment of the four commissioners, judge Kenyatta Nyirenda said hid judgement would not have any bearing on the validity of the elections that the commissioners presided over.
Challenging this stand, the DPP has filed an application that purports to assert challenge on the validity of the 23 June 2020 fresh presidential election and all subsequent parliamentary and local government by-election that the incumbent commission has presided over.
The DPP’s application was before the High Court judge Dingiswayo Madise who subsequently referred the matter to the Chief Justice for assessment and possible certification as a constitutional matter to be heard by a panel of not less than three High Court Judges.
The Chief justice is yet to announce his decision. If certified as a constitutional matter, the constitutional issues that will have been acknowledged will be settled for the benefit of the constitution at the constitutional court. However, DPP’s adventure to have the 23 June fresh presidential election nullified remains the tallest order.