A constitutional crisis looms in Malawi following a standoff in court the past two days. On one side are the Democratic Progressive Party (DPP) members of Parliament that are defending the constitution, and on the other, the MCP, trying to rape the constitution with the help of Hi5 judges.
On the third of February, the Hi5 biased judges made a strange ruling. They ruled that the presidential election must go for a re-run. A re-run was called for in the absence of any proof of vote-rigging.
No evidence presented to show that the will of Malawians is violated. No proof was presented that there were votes stolen from one candidate to another.
Elections are not a perfect science; they are a process managed by humans -and humans correct errors through Tippex. The Hi5 judges nullified the case on that basis alone.
Undenied strong reports are circulating state that judge Heyley Potani has been promised a Chief Justice position if Chakwera becomes President of Malawi.
Judge Madise, a relative of Mary Chilima who is a wife of the first petitioner, Saulos Chilima was already conflicted.
The judges are said to have collected hundreds of thousands of dollars to pass the judgement in favour of Chakwera and Chilima. They were also promised seats in Supreme Court.
What was strange in the judgement was the judiciary trying to use the ruling to force certain laws that were defeated in parliament before. One such ruling is that PPEA must be amended to use a 50+1 as a majority.
The 50+1 rule was tabled in parliament before, and defeated. Kajoloweka, through his unregistered NGO, tried to take the MPs to court for not passing the bill. He lost the case – with the court citing that there is a separation of powers between the judiciary and legislature.
Further to that, they also dictated to parliament that it needs to change the constitutional provisions to give effect to the already compromised judgement.
National Assembly Speaker, MCP MP Gotani Hara rushed to hold a press conference a day after the judgement – citing that she will table the motion to change the laws in parliament. She did this knowing very well that the judgement was taken on an appeal by the defendants, MEC, DPP, and President Mutharika.
Why was Gotani in a hurry to change the laws, knowing very well that the judicial processes are not yet concluded?
The rush by the MCP is because they are trying to rape the constitution to give effect to the unjust judgement that is still going on appeal. But that is not the bigger problem.
The big problem is that constitutional change or amendment is huge. Section 67 and Section 80 of the constitution have to be changed completely. Therefore, before the amendment bill is tabled in parliament, the MPs need to consult their constituencies.
The MCP refused to allow any consultative process. They are rushing the changes at lightning speed. A day before the amendments vote, the Burundian terrorist invaded parliament, threatening the DPP MPs, saying that they will deal with any MP who is going to oppose the bill.
Changing a constitution is a very complex process with a lot of provisions. MCP bulldozed through all those provisions to force the matter to go for a vote. That is tantamount to raping the constitution.
Sad for the MCP, and safe for Malawians, the motion to amend the constitution was defeated. They could not get the two-thirds majority to make the amendments.
Seeing that it is impossible to get two-thirds, the MCP then wanted an amendment of the constitutional provision that requires a two-third majority for a constitutional amendment.
But they are running
around in circles. To change that provision about the two-third, you need a
two-third first.
Seeing this abuse of parliamentary process, DPP MPs left the National Assembly
before any tabling of the motions that seek to undermine the constitution.
As it stands, there is no law that states that courts can instruct Parliaments
on what laws to pass, or what laws parliament must pass.
The judgement delivered on the 21st of February in Lilongwe High on the case of
Peter Bvalani and Jessie Kabwila vs Electoral Commission and others is telling.
In rejecting the application by Kabwila for nullification of the MP results,
Judge Mkandawire states – “I am aware that the Constitutional Court is at
the level of the High Court and therefore its decisions are not binding on
me.”
If the Constitutional court is at the level of a High Court, and the decisions
are not binding on a sitting judge, as Mkandawire says, why must the decision
be binding to the law-makers?
History has no blank pages. The DPP will go down in history as a party that
defended the constitution, while MCP tried to rape it.
