There is doubt among Constitutional Law experts that President Peter Mutharika’s quest for appeal will yield anything positive for him as he is the wrong party to appeal and, furthermore, his basis for appeal appears to avoid the substantive issues in relation to the ruling.
Speaking Wednesday evening, President Mutharika expressed dissatisfaction of the court’s decision, adding he will be appealing the decision declaring him as not being a duly elected president.
“This judgement is not the end of litigation process in the May 21 elections case. Malawi is a country of laws. As a lawful nation, there remains a number of laws and legal processes and procedures provided in our Constitution to regulate how we conduct ourselves to resolve our situation,” said Mutharika.
He added: “Like many Malawians, my legal team and I have serious reservations with the judgment. 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 judgment if not cured, represents a flawed precedence for all the elections in all future elections in the country. In fact, this judgment inaugurates the death of Malawi’s democracy. As such it cannot stand unchallenged. Consequently, I have instructed my legal team to appeal against the judgment and challenge it,” the Malawi President added.
However, Chancellor College Law Professor Garton Kamchedzera said Mutharika’s decision to appeal on grounds cited so far is unlikely to succeed.
“Their arguments cannot have the effect of making good MEC’S non-compliance with the Parliamentary and Presidential Elections Act and breaches of specific Constitutional provisions. A credible ground of appeal must question the answers the Court gave to the questions it was asked,” said Kamchedzera.
Another Professor of Law Danwood Chirwa also observed that President Mutharika has no basis for appeal.
“If I stole a car from B and give it to C as a gift, and a court convicts A of theft and orders the car be taken away from C, C is not an aggrieved party at law ; he’s a beneficiary of illegality, and cannot be heard to say he has lost property – therefore , he cannot claim an entitlement to appeal against the conviction of A,” said Professor Chirwa on his Facebook post adding that the real party that can appeal is the MEC.
On Monday, the High Court sitting as a Constitutional Court annulled last year’s elections citing irregularities.
The court ordered that fresh elections should be held in 150 days from the day the ruling was made.