The post-Constitutional court ruling circus has began

Jane Ansah

The rearguard action has begun. The Malawi Electoral Commission (MEC) has just filed papers before the Constitutional court seeking a stay of its order and issued a notice of appeal. That it has issued a notice of appeal promptly is a good thing. This will ensure that the matter is disposed of promptly.

But there are some eye-popping things in these papers that hint at desperation, loss of ideas or just plain incompetence on the part of MEC’s lawyers and the chairperson of the Commission, justice Jane Ansah, SC and a continuing abdication of responsibility the court was concerned with.

Take for instance the fact that the papers show that they were prepared for MEC by the Attorney General, Kalekeni Kaphale. The judgement clearly says it was unethical for him to have represented MEC.

Either the Attorney General has read the judgement, in which case he has deliberately chosen to act in contempt of court, or he has not read it, in which case he is incompetent and must be removed from office.

The same applies to the chairperson. Did she disobey the Court by instructing the Attorney General knowing what the judgement says?

The Constitutional court has the options to throw out the papers on this ground and to hold both the person of MEC and the Attorney General in contempt.

Equally mind-boggling is the fact that the chairperson of MEC has sworn an affidavit in which she insults both the Constitutional court judges and Parliament. Justice Dr Ansah insults the judges by accusing them of making an order to conduct ‘sham investigations’. This after the court found that the Commission acted incompletely and unlawfully, and abdicated it’s responsibilities in conducting the presidential election.

The senior judge also openly disrespects Parliament which she accuses without justification and evidence will conduct ‘sham investigations’ into the commissioners.

How does a Supreme Court judge attack the judiciary and parliament at the same time? Ansah holds the singular distinction of being the first supreme court judge to attack the very branch of government to which she belongs simultaneously as she attacks Parliament which as a judge she’s duty bound to respect. On this, she has violated her oath of office. Holding her in contempt of Parliament and of court isn’t enough. This rises to an impeachable offence.

What’s puzzling is this: while on the one hand Justice Dr Ansah insults Parliament, on the other hand she usurps the power of Parliament by arguing that the court cannot order Parliament to enact relevant law: well, it can, as a natural consequence of a finding of unconstitutionality.

There’s a wealth of comparative case law in support. We have also heard the Speaker announce that Parliament will implement the Court’s decision. Now we have a situation where a Supreme Court Judge is refusing, seemingly on behalf of Parliament, to implement the judgement.

One hopes the documents circulating on Whatsapp are fake. You can’t make this stuff up!

As to the question of stay, a self-proclaimed doyen of civil procedure trolled me yesterday about civil procedure and now I know what he was up to. It’s no good.

It is a basic principle of law that once a decision maker has decided a matter they cannot decide the same matter again. There is legal jargon that stands for this - functus officio.

If your don’t agree with the decision you appeal. While civil procedure allows parties to seek stay from the court that made the order, the grounds on which the application is based are scandalous and aimed at bringing disrepute to court. Lawyers have a duty to observe decorum and give due respect to judges, whether they agree with their judgement or not.

There are complaints about the impossibility of conducting elections within 150 days. MEC please hear this: if you can’t do it, resign. You’ve already been found to be incompetent. So on the one hand you refuse to submit to an competency investigation; yet on the other hand you admit that you can’t do your job as demanded by the Court. You can’t have your cake and eat it.

Because of the immature manner in which the papers have been written it is difficult to see how the stay serves the public interest. In particular it is not clear whether MEC wants the entire order to be stayed or only parts of it.

For example, why is it in the public interest to halt parliamentary investigations into commissioners who’ve been found to be incompetent? In all likelihood there will be fresh elections, we can’t have an incompetent group of people to run it. We are in this mess because of them.

Why should the public continue to pay this group of discredited people and allow them to bring further damage to the institution of MEC and the country?

Why should a president who’s been found to have been illegitimately declared head of state be allowed to stay in power beyond what is necessary to hand over power to a legitimate president? This illegitimacy has subsisted for the last five and a half years.

If the court uphold the constitutional courts decision, which is likely, how does the public reverse the damage caused by the illegality? Do these people pay back the money? Do we reverse all their decisions? What about the enormous public spending they have engaged in?

On the other hand, if the decision of the Constitutional Court is reversed, which is unlikely, there will not be any loss suffered by the president. He is still president. Cabinet ministers serve at the mercy of the president who rules on behalf of the people. They are not entitled to be ministers. It’s a privilege to serve as one. If they are not ministers for two or three months or even a year they will not have lost anything they were entitled to.

This is the same with the commissioners. Their personal interests cannot outweigh the overriding public interest to ensure that those who exercise public power derive their authority from the people. This means that we must do everything to ensure that competent people run the commission.

It is plausible to seek the suspension of the time within which the election can be held until the Supreme Court deliberates on the case, if it accepts the appeal. But this should be done observing the decorum of the court.

The circus has began. It will only get worse. But there’s definitely light at the end of the tunnel.

* The author is a Malawian Professor of Law at University of Cape Town, South Africa. This article first appeared on his Facebook page.